Robinson v. McAlhaney
| Decision Date | 12 October 1938 |
| Docket Number | 116. |
| Citation | 199 S.E. 26,214 N.C. 263 |
| Parties | ROBINSON v. McALHANEY. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Buncombe County; Felix E. Alley, Judge.
Action by Mrs. Irene Robinson against L. F. McAlhaney for breach of contract. From an adverse judgment, plaintiff appeals.
Affirmed.
Plaintiff could not treat contract as in force for purpose of recovering damages for its breach and at the same time recover damages for fraudulent inducement.
Civil action to recover damages for breach of contract.
This action was instituted in the General County Court of Buncombe.
Plaintiff alleges in substance, and on trial in the General County Court offered evidence tending to show: That in February 1936, she entered into a contract with defendant by which it was agreed 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 to the Great Smoky Mountain National Park above the Cherokee Indian School in Swain County, and give to 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 furnishing the necessary funds for the payment of rents purchasing of Indian craft, and all expenses incidental to such business, and providing for plaintiff and her two minor daughters board and lodging on the premises,-she to manage the business, be in full, complete and sole charge of the premises, and to receive three and one half percentum of the gross receipts from the business; that she obtained a five-year lease to defendant to become effective on April 1, 1936; and that she remained upon the premises, and complied with the terms of the agreement until about June 1, 1936, during which period the defendant breached the contract in numerous respects specified, "all to her great loss and damage".
Plaintiff further alleges and, over defendant's objection, offered evidence tending to show: That, by reason of false and fraudulent representations made by defendant, she was induced to enter into the contract "all to her great loss and damage". Plaintiff further alleges: "That by virtue of the matters and things hereinabove set out, this plaintiff has been damaged by the defendant's breach of contract, his deceits and misrepresentations, and his fraudulent breach of contract, in the sum of at least $30,000."
Defendant denied material allegation of the complaint and objected to the admission of testimony.
These issues were submitted to and answered by the jury:
"1. Did the defendant contract with the plaintiff, as alleged in the complaint? Answer: Yes.
2. If so, did the defendant breach the contract, as alleged in the complaint? Answer: Yes.
3. Did the defendant induce the plaintiff to enter into said contract by reason of the fraudulent representations, as alleged in the complaint? Answer: Yes.
4. What amount, if any, is the plaintiff entitled to recover of the defendant on account of board for herself and two daughters, as alleged in the complaint? Answer: None.
5. What amount has plaintiff obtained by way of compensation from other employment subsequent to the breach of the contract and prior to the 8th day of July, 1937? Answer: None.
6. What damage, if any, is the plaintiff entitled to recover of the defendant? Answer: $5,750.00."
From judgment on verdict defendant appealed to the Superior Court and presented one hundred four assignments of error covering one...
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