Sentelle v. Board of Educ.

• Decision Date: 26 February 1930
• Docket Number: 61.
• Parties: SENTELLE v. BOARD OF EDUCATION.
• Court: North Carolina Supreme Court

151 S.E. 877

198 N.C. 389

SENTELLE v. BOARD OF EDUCATION.

No. 61.

Supreme Court of North Carolina

February 26, 1930

Appeal from Superior Court, Edgecombe County; Cranmer, Judge.

Suit by R. E. Sentelle against the Board of Education. Judgment for plaintiff, and defendant appeals.

Error.

Bank slip held admissible to corroborate testimony that item was transferred from school superintendent's account to county's fund without being credited to superintendent in settlement with board of education.

Excepting a brief interval, the plaintiff was superintendent of public instruction of Edgecombe county from July 1, 1920, to January 18, 1926, when he resigned his office. The defendant employed auditors to make an annual examination and audit of his accounts, and accepted the audits thus made at the end of each fiscal year up to 1924. The defendant then employed A. Lee Rawlings & Co. to make an audit for the year beginning July 1, 1924, and ending June 30, 1925. There is evidence that these accountants inspected the audits previously made, and reported certain irregularities and deficiencies in the plaintiff's accounts. The defendant demanded that the plaintiff make settlement in accordance with this report. Thereupon the plaintiff, threatened with criminal prosecution for the misappropriation of funds, paid the amount claimed to be due, alleging that it was erroneous wrongful, and unjust, and, with the defendant's consent "reserving his right to resist payment and to recover the money unjustly required of him and paid by him, *** and to receive credit for errors and corrections in the said audit." The plaintiff alleges that, before bringing suit, he demanded of the defendant return of the amount he had wrongfully paid, and that the defendant refused to return the amount or any part of it. The defendant filed an answer denying liability, and at the trial the jury, in response to the issue, found that the defendant is indebted to the plaintiff in the sum of $4,840.33, with interest from January 18, 1926. Judgment for the plaintiff; appeal by defendant upon error assigned.

George M. Fountain, of Tarboro, for appellant.

V. E Fountain and H. H. Philips, both of Tarboro, for appellee.

ADAMS J.

The exceptions addressed to the appellant's motions for judgment upon the pleadings and for dismissal of the action as in case of nonsuit must be overruled. The first motion rests upon the objection that the complaint does not particularly set forth the several items constituting the alleged errors and irregularities, or allege that any substantial error or irregularity appears in the last report of the certified accountants. The objection is not valid. There is a broad distinction between the statement of a defective cause of action and a defective statement of a good cause of action. The complaint is not within the first class; and, if within the second (a question we need not discuss), the defendant did not file a demurrer, but waived the defect by answering the complaint and pleading to the merits. Johnson v. Finch, 93 N.C. 205; Warlick v. Lowman, 103 N.C. 122, 126, 9 S.E. 458; Wright v. Ins. Co., 138 N.C. 488, 51 S.E. 55; Eddleman v. Lentz, 158 N.C. 65, 72 S.E. 1011. The defendant made no application for a bill of particulars to make more definite the alleged cause of action. C. S. § 534; Bristol v. R. Co., 175 N.C. 509, 95 S.E. 850.

The second motion was properly denied, because the evidence interpreted most favorably for the plaintiff was of sufficient probative force to justify its submission to the jury. This, in our opinion, is patent. Both the oral evidence and the record evidence are in support of an agreement between the parties that the plaintiff's payment of the amount claimed to be due should not preclude him from afterwards attacking the settlement for errors and irregularities; and that errors are alleged is not to be doubted. The defendant's disposition of the money is immaterial upon the question whether the settlement was incorrect. The crucial point is whether the plaintiff was required to pay more than he was due, or whether the defendant was unduly enriched at the plaintiff's expense.

The plaintiff offered in evidence nine statements or letters written by teachers in the county concerning the distribution of school books. The judge afterwards withdrew them, and instructed the jury not to consider them. The defendant objected to the introduction of the papers and to their withdrawal. They were not read in the hearing of the jury but were merely turned over to the stenographer for identification. So far as the record discloses, no member of the jury had any knowledge of the contents of the letters, and such knowledge cannot reasonably be inferred from the form of the questions preceding the introduction of the papers in evidence. We do not see how this incident could have influenced the jury to the prejudice...