Smith v. Cashie & Chowan R. & Lumber Co
| Decision Date | 27 February 1906 |
| Court | North Carolina Supreme Court |
| Parties | SMITH. v. CASHIE & CHOWAN R. & LUMBER CO. |
Under Revisal 1905, § 1460. requiring the answer in justice's court to contain a denial of the complaint or any part thereof, and a statement in a plain and direct manner of any facts constituting a defense or counterclaim, a defense of estoppel predicated on a judgment in a former suit between the parties must be special-ly pleaded, even in an action before a justice of the peace, and is not available under the general issue or anything equivalent thereto.
[Ed. Note.—For cases in point, see vol. 30, Cent. Dig. Judgment, § 1787.]
Where there is any evidence which reason-ably tends to prove the fact in issue, or where the credibility of witnesses must be passed upon, the question of fact is for the jury under prop-er instructions, and it is error to instruct the jury to resolve that issue in a particular man-ner.
Appeal from Superior Court, Bertie County; Peebles, Judge.
Action by John T. Smith against the Cashie & Chowan Railroad & Lumber Company. From a judgment for plaintiff, defendant appeals. Reversed.
Civil action tried before Peebles, J., and a jury at September term, 1905, of Bertie superior court. The plaintiff sued before a justice of the peace to recover the sum of $150, the balance due for services. In his complaint he alleged that the defendant owed him $150 for two months' work at $75 per month. The defendant simply denied that it owed the plaintiff anything. The plaintiff testified that on February 5, 1905, the defendant employed him to buy lumber trees for it, for which service he was to receive $75 per month, payable at the end of each month, and it was agreed that the employment should last four months. At the end of the first month—that is, about March 5th—the defendant paid the plaintiff for that month $75, and without lawful excuse discharged him. For the sole purpose of showing that the justice had jurisdiction of this case, the plaintiff was permitted, over the defendant's objection, to show that after June 10, 1904, when all the instalments of his salary were overdue, he sued the defendant before a justice of the peace for that part of the salary, $75, due for the month ending April 5, 1905, and recovered judgment for the same, which was paid by the defendant, leaving a balance of $150 due. The defendant admitted that it employed the plaintiff at $75, but introduced evidence to show that he was employed for one month only. In this connection Mr. Smith, a witness for the defendant, testified that the plaintiff was not hired for four months, but for only one month, and that he was paid for that month, and contended for nothing further than the salary paid to him at the end of the first month. The issues submitted to the jury, with their answers, were as follows: (1) Did the defendant hire the plaintiff for the term of four months at $75 per month? Yes. (2) Did the defendant unlawfully discharge the plaintiff from its employment after the first month? Yes. (3) Is the defendant indebted to the plaintiff, and, if so, to what amount? Yes; $100, with interest from June 5, 1904, until paid. The defendant's counsel requested the court to give the following instructions to the jury: "When the plaintiff sued for and collected his one month's wages under his judgment, he was by that estopped to sue for the balance, because his contract was entire, and not divisible, and suing for less than the amount of the whole claim was in law a decision of what was due him in full." The court refused to give the instruction, and the defendant excepted. Upon the second issue the court charged the jury that, "If the first issue was answered 'Yes, ' the second issue should be answered 'Yes, ' for upon that issuethe burden was upon the defendant, and it had offered no evidence to satisfy the discharge if the contract was for four months." Judgment on the verdict was rendered for the plaintiff, and the defendant appealed.
Francis D. Winston and St. Leon Scull, for appellant.
Day, Bell & Dunn and J. B. Martin, for appellee.
WALKER, J. (after stating the case). The defendant relied upon the judgment recovered before the justice of the peace for the second month's instalment of salary as a bar to this action, and assigns as a reason why it should have this effect that there was a single contract to pay a salary by monthly instalments, and as all the instalments were overdue at the time the suit was brought, and the judgment rendered, the plaintiff was...
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...Sigmon v. Shell, 165 N.C. 582, 81 S.E. 739 (false arrest); Lee v. Eure, 82 N.C. 428 (discharge in bankruptcy); Smith v. Cashie & Chowan R. & Lumber Co., 140 N.C. 375, 53 S.E. 233 (estoppel by judgment); Smith v. Newberry, 140 N.C. 385, 53 S.E. 234 (accord and satisfaction); Rountree v. Brin......
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