Wilson v. Batchelor

• Decision Date: 28 September 1921
• Docket Number: 186.
• Citation: Wilson v. Batchelor, 108 S.E. 355, 182 N.C. 92 (N.C. 1921)
• Parties: WILSON v. BATCHELOR.
• Court: North Carolina Supreme Court

108 S.E. 355

182 N.C. 92

WILSON v. BATCHELOR.

No. 186.

Supreme Court of North Carolina

September 28, 1921

Appeal from Superior Court, Pitt County; Horton, Judge.

Action by Frank Wilson against Roy Batchelor before a justice of the peace.Judgment for plaintiff, and defendant appealed to the superior court.Judgment for defendant, and plaintiff appeals.No error.

Where plaintiffappellant inquired of jury before they were impaneled if any one of them had retained the counsel for the defendant in the case in any pending cause and received no answer, it cannot be said that the trial court erred in refusing to grant a new trial, where it was discovered after verdict that one of the jurors had retained opposing counsel in a pending cause, but there was no suggestion of bad faith or corruption on the part of the juror, or that movant sustained any damage by his silence when the inquiry was made.

Plaintiff sued before a justice of the peace to recover of defendant $126.19.He had employed the defendant as clerk in August 1914, at $50 per month, and the defendant's services having proved satisfactory, the plaintiff contracted with the defendant for 1915 and 1916.The plaintiff contends that he was to pay the defendant for his services for 1915 $720, and for 1916 the sum of $800.The defendant contends he was to receive $800 for 1915 and $900 for 1916.The defendant had overdrawn his account by $126.19, about which there was a dispute, and contends that if he had received the proper salary credit it would leave the plaintiff indebted to him in the sum of $53.81; this being the difference between $180 due on his salary, and the store account of $126.19.

It was conceded at the trial that if the plaintiff sustained his contention he was entitled to recover the full amount sued for, and if the defendant sustained his contention that the plaintiff was entitled to recover nothing, and the defendant the sum of $53.81, and the case was tried upon this theory.The jury sustained the contention of the defendant, found that he was not indebted to the plaintiff in any amount, and rendered a verdict against the plaintiff for $53.81.Judgment was rendered accordingly, and plaintiff appealed.

W. F Evans, of Raleigh, for appellant.

Albion Dunn, of Greenville, for appellee.

WALKER J.(after stating the facts as above).

The plaintiff's position is that the defendant has not alleged in his counterclaim that the plaintiff had promised to pay him the sum of $900 for the year 1916, but that he would raise his salary if there was an increase in the business, and that there was a large increase, which reasonably entitled defendant to a salary of $900; but we are of the opinion that the oral pleadings contain a sufficient allegation.The pleadings were somewhat informal, it being an appeal from a magistrate; but in the superior court the following entry was made in the record, as appears:

"The defendant admits that the plaintiff's account as introduced is correct, except the salary credits; the defendant claiming that he is entitled to a credit of $800 for 1915 and $900 for 1916, instead of $720 for 1915 and $800 for 1916."

This gave the plaintiff fair notice of the nature of defendant's demand, and it was substantially a more definite statement of the latter's counterclaim.

We must construe the pleadings and proceedings liberally, and not allow justice to fail because of any mere informality, or irregularity, especially when we are dealing with pleadings before justices of the peace.

"Pleadings (before a justice) are not required to be in any particular form, but must be such as to enable a person of common understanding to know what is meant."Consol. Statutes, § 1500(rule 7), vol. 1, p. 669.We said in Smith v. Newberry,140 N.C. 385, at page 387, 53 S.E. 234, that--

"Large power of amendment is vested in the superior court, limited only by the condition that the amendment show a cause of action within the jurisdiction of the justice.Mfg. Co. v. Barrett,95 N.C. 36;Planing Mills v. McNinch,99 N.C. 517.* * * If the defendants had so desired, they might have called upon the plaintiff to make his counterclaim more specific, either in the justice's court or after the case reached the superior court upon appeal.Revisal, 496; cases cited in Clark's Code, § 261.In the absence of any more definite pleadings or any motion to make them so, his honor properly submitted the issue upon the cause of action which seemed to be and, as the jury found, was sustained by the evidence."

And to the same effect is Turner v. McKee, 137 N.C. (Anno. Ed.) 257, 49 S.E. 330.While the complaint, as it was briefly noted on the justice's docket, and return to the appeal, may state merely that if, in 1916, there was an increase in the business over that of 1915, the salary would be raised, the plaintiff made his promise more definite after he learned what the increase was by fixing $900 as the amount of the salary, and throughout the trial he was apprised of the true claim made by the defendant.There is no legal merit, in this exception, to the charge of the court that if the jury found that the plaintiff had promised to pay defendant $900 for the year 1916, they should allow the latter that amount, and deducting plaintiff's claim of $126.19 from the balance due defendant on his salary, calculated on that basis, which was $190, their verdict would be for the ultimate balance which is $53.81.

The plaintiff inquired of the jury, before they were impaneled, if any one of them had retained the counsel for the defendant in this case, in any pending cause, and received no answer.After the verdict was returned, defendant moved for a new trial because the said counsel had been retained by one of the jurors in a pending cause, and such was the fact.The motion was overruled, and properly so.We held in State v. Maultsby,130 N.C. 664, 41 S.E. 97(op. by the present Chief Justice), that a motion to set aside the verdict on account of relationship between the prosecuting witness and a juror, which was discovered after verdict--even if such relationship is ground of objection, as to which it is not necessary to decide--rested in the discretion of the trial court, and its refusal is not reviewable on appeal.This has been held where the relationship between a party and a juror is not discovered until after verdict.Spicer v. Fulghum,67 N.C. 18;Baxter v. Wilson,95 N.C. 137.The same ruling has been made where, after verdict, the juror was ascertained to be incompetent because a minor ( State v. Lambert,93 N.C. 618), or not a freeholder (State v. Crawford, 3 N. C. 298), or an atheist ( State v. Davis,80 N.C. 412), or a nonresident ( State v. White,68 N.C. 158), or for other causes, seeState v. De Graff,113 N.C. 690, 18 S.E. 507, andState v. Council,129 N.C. 517, 39 S.E. 814, and cases there cited.And in State v. Perkins,66 N.C. 126, at page 128, the court said by Chief Justice Pearson:

"It was the misfortune of the defendant, that neither he nor his counsel had been sufficiently on the alert, to enable them to find out the fact in 'apt time' to make it cause of challenge, that one of

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