Robinson v. McAlhaney

• Decision Date: 03 January 1940
• Docket Number: 110.
• Parties: ROBINSON v. McALHANEY.
• Court: North Carolina Supreme Court

6 S.E.2d 517

216 N.C. 674

ROBINSON v. McALHANEY.

No. 110.

Supreme Court of North Carolina

January 3, 1940

Civil action instituted July 8, 1937, in general county court of Buncombe County, for recovery of damages for breach of contract.

The case came to this Court on former appeal from a judgment at the April Term, 1938, of the Superior Court of Buncombe County, on appeal thereto by defendant from judgment on verdict of the jury in general county court of said County. 214 N.C. 263, 199 S.E. 26.

The terms of the contract sued upon and established by the verdict, briefly stated, are these: That in February, 1936 it was agreed between plaintiff and defendant that if she would procure a lease on tourist home owned by H. L. Lambert and consisting of store, restaurant, rooms and cabins located at the entrance of Great Smoky Mountain Park above the Cherokee Indian school in Swain County, and give to the defendant the benefit of her experience and good will in the community, and her knowledge of trading with the Indians, he would finance the entire proposition, furnish the necessary funds for the payment of rents, purchase of Indian craft, and all expenses incidental to such business, and provide for plaintiff and her two daughters board and lodging on the premises, and allow her three and one half per cent of the gross receipts of the business,--she to manage the business be in full, complete and sole charge of the premises; that she obtained a five-year lease for defendant to become effective on April 1 1936, and that she remained upon the premises and complied with the terms of the agreement until June 1, 1936, during which period the defendant breached the contract in numerous respects.

Adverting to the former appeal, it will be noted that after considering and ruling upon each of the various exceptions then assigned as error, the Judge of the Superior Court sustained the verdict (a) on the first and second issues, which established the contract and the breach of it, and (b) on the fourth issue; "What amount, if any, is plaintiff entitled to recover of defendant on account of board for herself and two daughters, as alleged in the complaint? Answer: 'None"'. But the court set aside the verdict on the third, fifth and sixth issues.

In judgment then signed it is stated that the verdict on the fourth issue "shall not be set aside, but shall remain in full force and effect as the verdict of the jury, for that there was no reversible error committed in the trial relating to said issue, and for the further reason that said issue was answered against the plaintiff, and the plaintiff has not appealed to this Court, and the defendant does not ask that the answer to said issue be set aside."

It further appears that the Court ordered "that judgment of the general county court be set aside and the case be remanded thereto for new trial upon only two issues, the fifth and sixth, as follows:

"5. What amount has plaintiff obtained by way of compensation from other employment subsequent to the breach of the contract prior to the 8th day of July, 1937," and "6. What damage, if any is plaintiff entitled to recover of defendant?"

This judgment of the Superior Court was affirmed on the appeal to this Court.

On re-trial in the general county court the case was submitted to the jury on the said issues as directed. To the issue "What damage, if any, is plaintiff entitled to recover?" the jury answered: "$4,000," and to the other issue "$400." Thereupon the court entered judgment in favor of the plaintiff for $3,600.

In the course of the second trial, on being cross examined with reference to her testimony as a witness on former trial, plaintiff testified: "I think I made some statement to that effect then that three and one half per cent I was to receive from the gross income was to be paid monthly, but it was not definitely agreed as to how it was to be paid. I was to have money any time I needed it, daily, weekly, monthly, any time I needed money I was to take it." Then upon being asked if she did not swear on the former trial that the three and one half per cent was to be paid monthly, she replied: "That is something near right, with the exception I was not asked anything about putting anything back into the business at that time. That was thoroughly discussed. We thoroughly discussed it, that we would allow as much to go back into the business as we could possibly do without. In addition to that I testified each month as the business went along he was to pay me three and a half per cent of the gross business shown each month, and that he was to board and furnish room for me and my two children. *** That is what I said the contract was. I have not changed the contract with Mr. McAlhaney since I was on the stand before. It is just exactly what it was before."

The defendant, having preserved two hundred and fourteen exceptions, appealed to the Superior Court of Buncombe County. In judgment of Superior Court on such appeal the presiding Judge, after reviewing the history of the case following the first trial in general county court, and prior to the second trial, states that:

"Upon the second trial in the county court, the jury was permitted to take into consideration the value of the board and lodging for plaintiff and her two daughters in answering the issue as to damage, and the position of plaintiff was that she was entitled to recover damages for the breach of the contract for the entire five year period of the lease in question, and that she was thereby not limited in her recovery to the percentage due her under the contract to the date of the institution of the action; yet the court, while it adopted this theory of the plaintiff, at the same time submitted an issue as to the amount the plaintiff had obtained by way of compensation from other employment and limited it to the period between the date of the breach of the contract and the date of the issuing of summons.

"Upon the argument of the appeal before the Superior Court counsel for the plaintiff stated that the contract between the plaintiff and defendant is not one of partnership, but is one of employment.

"Upon due consideration, the court is of the opinion, in the first place, that the instructions upon the issues submitted were repugnant to each other; and, in the second place, that the court was in error in permitting the plaintiff to recover damages for the period subsequent to the institution of the action, to wit: July 8, 1937, it being the opinion of the court that the plaintiff was limited as a matter of law to such damages as she might establish prior to said date.

"The court, in entering this judgment, does not make any adjudication with regard to the rights of the parties subsequent to the date of the issuing of the summons."

Thereupon the Judge ruled upon each of the exceptions assigned, and, after sustaining seventy one of them, entered judgment (a) that the verdict on the first issue, to wit: "What damage, if any, is plaintiff entitled to recover of defendant? Answer: $4,000", shall be set aside for errors committed by the trial court in the trial of the cause as covered by the exceptions set out in the judgment; (b) that the verdict on the second issue, to wit: "What amount had plaintiff obtained by way of other employment subsequent to the breach of the contract, and prior to the 8th day of July, 1937? Answer: $400", "shall not be set aside, but shall remain in full force and effect as the verdict of the jury, for that there was no reversible error committed in the trial relating to the submission of said issue, and for the further reason that said issue was answered against plaintiff, and plaintiff has not appealed to this Court, and defendant has not asked that the answer to this issue be set aside."

Thereupon the Court ordered the case to be remanded to the general county court for a new trial "in conformity with this judgment on one issue, namely: "What damage, if any, is the plaintiff entitled to recover of defendant in conformity with the judgment of this Court?"

Plaintiff appeals therefrom to the Supreme Court, and assigns error.

Irwin Monk and Weaver & Miller, all of...