*1 IN THE SUPREME COURT they present case, applicable indicate the not to the but do are legislative rather than restrict intent to broaden further may given. of notice claim to whom officials gone plaintiff’s claim present had the notice of case directly city council, undoubtedly have been re- it would investigation manager by city the council to ferred city turn, manager, referred would have The recommendation. it to the attorney. city Hence, hold we that when written notice manager city filed with the within plaintiff’s claim was of by city charter, by city prescribed referred him to the time presented city by attorney, subsequently to the council requirements city attorney, under of notice Section 9.01 substantially City of of the Charlotte were the Charter reasonably and that the in affirm- met erred plaintiff’s ing dismissal of the trial court’s action. Appeals is and the reversed decision the Court that court with direction that it be re- cause is remanded to Mecklenburg County Superior Court of
manded opinion. trial in accordance with Reversed remanded. MOODY, ADDER & INCORPORATED
JAMES B. v. HOLMAN 26No.
(Filed 1975) 5 November — relinquishment possession voluntari- § Liens 1— of car 1. Mechanics’ —ness worthless check 44A-2(d) for work done on of lien under G.S. extinguished Defendant’s claim possession plaintiff plaintiff’s when not obtained car was by giving check the car was a worthless since of the car meaning “voluntarily” relinquished defendant within the G.S. 44A-3. — — signing possession regaining and release of car note 2. Duress— goods dragstrip racer, into a car Where defendant rebuilt giving a worth- acquired possession up, engine due, blew thereafter balance less check business, place re- and defendant car to defendant’s returned the possession regain until of the car allow fused to liability promissory for the purported and a note bal- release from FALL TERM 1975 *2 Moody, Adder Holman Inc. v. & original car, anee due work on release and note were by goods not wrongfully obtained since defendant did not original hold the because car it had a lien on the vehicle still for the work, plaintiff showing and since there was no was not on an equal footing with defendant. 3. Torts 7—release § defined giving up abandoning A right release is the or of a claim or against person right whom the claim exists or the is to be exercised. 2— Waiver waiver defined § voluntary relinquishment waiver is a and intentional of a
known or benefit. 5. Contracts 12— § construction contracts parties, The heart of a contract of the intention and that language be contract,
intention must determined from the of the purposes parties subject contract, of the matter and the situation of the time at the the contract is executed. agreement liability 6. Torts 7— § release from agreement acknowledging plaintiff’s An indebtedness to defendant performed rebuilding plaintiff’s for the due for balance work in stating against has “no or defenses set-offs such grounded upon poor workmanship objections” indebtedness or other plaintiff’s did not constitute a release of claims implied negligence warranty rebuilding based on and breach of in language car, agreement being of the restricted to defense contempo- in the event a set-off defendant resorted a suit on a raneously executed note balance due. Shakp dissenting. Chief Justice Copeland dissenting joins opinion.
Justice Appeal right by pursuant 7A-30(2) to G.S. Appeals reported of the to review decision App. 588, Brock, N.C. (opinion by Martin, Judge, 2d 214 S.E. concurring Judge, Vaughn, Judge, dissenting), Chief reversing September judgment McConnell, J., 1974 Session Superior of Davidson Court. injuries damages Plaintiff instituted action to recover resulting allegedly negligence from defendant’s breach warranty rebuilding
implied auto- Maverick denying allegations Defendant answered mobile. of the material affirmatively alleging complaint plaintiff. release recovery promissory Defendant also counterclaimed for note on a allegedly by $1,538.03. in the amount of way unlawfully reply asserted Plaintiff that defendant IN THE COURT SUPREME &
Adder Holman and that he the note and held his automobile another paper writing trial under came on for before duress. case sitting jury. By Judge Judge McConnell, without a consent damage growing that the issue of out of the directed McConnell actions based on negligence warranty tried at later date. tending con- to show Plaintiff offered evidence automobile tracted with defendant to rebuild his 1971 Maverick drag completion work, strip Upon racer. into a upon $2,500 endorsement from borrowed a bank work. on the amount due for its which was to defendant *3 including borrowed, time, $2,500 plaintiff had At this delivery Upon the auto- approximately $10,000. to defendant gaye the amount of mobile, plaintiff defendant a check in representing balance due to defendant for rebuild- $1,538.08, ing plaintiff’s The not honored because automobile. check was plaintiff’s weeks later funds account. Several of insufficient had “one run” the Maverick automobile made and after engine up He took warmed it for a race. “blew” requested to defendant that defendant back and the automobile get wrong. attempted he to was Several later weeks see what he told it released until and was would his automobile including due, note the amount due on the paid the balance he attorney an had endorsed. Plaintiff consulted defendant which attorney telephone and pursuant to a discussion between his attorney, plaintiff defendant’s returned to establish- defendant’s $2,500 pay the amount of to off certified check in ment with understanding It endorsed was the note defendant.. would be released and he and defendant his automobile remaining $1,588.03 and work out the due to discuss would At time refused to auto- deliver the defendant. arrangements pay $1,538.03. were to unless made mobile the balance few weeks. Defend- Plaintiff ant instruments, within attorney prepared its and thereafter then contacted two. “A” “B,” Exhibits which signed. part transaction, of this also As he delivered read and $2,500. check in amount of Plaintiff testi- attorney attorney he not contact his that because his did fied day. He further stated that he read the in court was instruments signing. explanation he knew what was testified: his actions sitting the car because it had there a I wanted been ... $10,000.00 I I
good up needed it. tied in it. while FALL TERM 1975 Moody, Inc. losing I signature. couldn’t see it for or a I had $1500.00 signed car, have so I the release came I back. gave (Objection them the overruled.) only- $2500.00. way get sign I could really car was to it —I was forced I into it. over a barrel I because had a car sitting it; just there. I only way needed I felt that was the going get I was the car. . . . The instruments which are as follows: Exhibit
A & W Radiator Service 501 South Main Street Lexington, North Carolina Holman
Post Box Office
Charlotte, North Carolina 28208
Gentlemen: acknowledge my This will indebtedness representing the balance due parts for labor and to finish my drag race and that I have no defenses or set-offs grounded upon such poor indebtedness workman- *4 objections. ship or other August
In consideration for an extension of time until 1972, agree I you my to promis- execute and to deliver sory agree note in the amount of and further by August pay I 10, 1972, you should quired fail to and are re- attorney
to turn this note over to an collection, pay attorney I will reasonable fees. agree you I further in the event that should un- any note, plead
dertake suit me on the I will not against payment defenses of same.
Signed: James B. Adder
Exhibit B July 21, 1972 per For annum value received and interest at 7 % May undersigned 4, 1972, pay promises from Holman Moody, Inc. SUPREME COURT IN THE Holman & Adder v. Eight Thirty Thousand Five Hundred
One 03/100 Dollars August Charlotte,
payable North or before at Carolina 10, 1972. hereby be col- evidenced
In the event the indebtedness through attorney maturity, the holder an at law after lected attorney fees. De- reasonable entitled to collect shall be mand, presentment, protest, protest notice notice parties In the bound hereon. waived all of dishonor August 10, payment of note is made before event undersigned payment of 1972, the shall not liable for provided for herein above. interest my hand and seal Witness (Seal) Adder
James B. Address: Adder, B. & Radiator Serv. W James St., Lextington, Main N. C.
501 South August 10, 1972 Due testimony Judge ruled that McConnell At close binding estopped was from and that the release thereupon moved a directed ver- Defendant action. further ruling on this motion was reserved. on its counterclaim dict Judge September on 11 filed cause McConnell finding facts consistent with those therein set forth After alia,, and decreed:
he, further concluded inter supported the execution the release was IV. [That plain- passing from the defendant consideration extended time for the in that tiff to defendant, indebtedness to the defendant interest if said indebtedness was waive the August 10,1972 plain- and the defendant released before plaintiff.] automobile tiff’s signing delivering That the admitted V. *5 in the amount promissory note of the said admitted that such amount was the balance defendant on the contract. due no evidence of fraud That there was or fraudulent
VI. part pro- misrepresentation of the defendant in its signed by plaintiff. the release which was curement FALL TERM That VII. at the close of the evidence moved for on its counterclaim. upon foregoing findings
Based of fact Adjudged It Ordered, Is and Decreed as Follows : 1. up release which [That the defendant set in his pleadings as an plea affirmative defense and as a in bar binding is valid and plea and defendant’s is sustained bar plaintiff’s hereby action is dismissed.] 2. the defendant have and recover from the [That together on its counterclaim the sum of with interest on percent per said sum at the rate of seven May 4, annum judgment.] from 1972 until the date of this 3. That the plaintiff. costs of this action be taxed to the day September, This the 11th 1974.
John D. McConnell Judge Presiding September at Superior Third 1974 Term of the Court Division of the General Court of Justice Davidson County, North Carolina appealed. Plaintiff Biesecker, by Roger Tripp
Wilson & Bie- S. and Joe E. secker, plaintiff appellant. Penry, by Grubb, Grubb and Robert L.
appellee. BRANCH, Justice. opinion rationale wrongfully that defendant held automobile and thereby him, obtained the execution of a note and “release” from goods. reaching majority decision, In its panel Joyner Joyner, 27, relied on 2d 140 S.E. N.C. 714, Whitley, and Smithwick v. N.C. S.E. bought Smithwick offered evidence that he parcel price certain of land from defendant at an $35 per acre and executed notes a deed of trust secured purchase price; defendant, turn, con- a deed *6 COURT IN THE SUPREME
490 Moody, Holman Inc. Adder v. & left with" defendant veying the deed was to him and the land recording. possession of the land into Plaintiff went for began clearing was consum- denied that sale it. Defendant remaining evi- The left with him. that the deed was mated or uneontradicted) plaintiff went (apparently shows dence said that if the deed and defendant about give After per him the deed. pay he would would him acre $50 price de- discussion, plaintiff considerable cleared, had fenced the land which he manded rather than lose receiving deed, plain- brought Upon to tillable condition. alleged pur- brought $280, the difference between tiff suit contending actually paid, price for and contracted chase Upon intimation under duress. this difference was that by charge, plaintiff judge submitted as to his intended the trial finding in appealed. no error This to a nonsuit and stated: trial below get deed for the payment in order to The $280 voluntary. to stand The
land was any, legal rights his land, if he had and assert his equities the courts of the State. by one, act of an- the unlawful Duress exists where forego perform or
other, make a contract or is induced to deprive him of the which act under circumstances some Bank Cyc., 1123, and cases cited. of free will. exercise 374; N.C., 291; Smith, Logan, Ga., v. Mathews v. Miller, St., 486. v. 68 Pa. Miller person it commonly where to be of Duress said is by threats, imprisonment, or .an is manifested Or resisted. apparently cannot be of force which exhibition obliged to an may goods, submit when one it illegal be of the goods possession of his obtain in order to exaction wrongfully into taken them who has- from one and chattels leading Astley Reynolds, Strange, is a possession. v. Mich., 573. Hackley Hackley, 45 subject. case on goods here. person nor neither There is possession of land and in actual claiming “deal had title, denied get plaintiff acceded a deed In order consummated.” been Upon price. paid the advanced demand and to defendant’s adjust- voluntary payment, an it was a the authorities all ours.) (Emphasis dispute. ment of FALL TERM 1975 *7 The of rule law quoted approval above stated was with Joyner Joyner, supra. of case v. See also Hartsville Oil Mill v. States, United 43, 271 822, 389; 70 U.S. L.Ed. 46 S.Ct. v. States, Silliman United 465, 987; 101 25 U.S. L.Ed. Rosenfeld v. Boston Co., 304; Mut. L. Ins. 222 284, Mass. 110 Goebel N.E. Linn, v. 489, 511; 284; Hackley 47 Mich. Headley, 11 N.W. v. 45 569, Mich. 8 Foley, 421, N.W. v. Cable Minn. N.W. 1135. are p. 711, We advertent to the in 70 A.L.R. collected cases Insisting Delivery upon
Annotation —Duress in Release Before Property Equal Footing. of are These Where Parties not on wrongful withholding by persons cases relate to such rela- tionship majority que trust, attorney client, as trustee with cestui with minority stockholder with fidu- stockholder other , ciary relationships. property withheld in cases was these generally legal right. held without claim of see this context 2d, also 25 5, p. Am. Jur. Duress Undue Influence 360. § [1] In instant case, before the automobile was originally de plaintiff, livered to entire defendant had for the a lien on the vehicle repairs pursuant due amount to it to and services 44A-2(d) (1974). vehicle, plaintiff G.S. In order to obtain gave defendant a check for the due. The check was balance returned uncashed of these because insufficient funds. Under extinguished circumstances, defendant’s lien was not and the the through subject redelivery property was to defendant remedy delivery. Triplett, 678, of claim and Reich v. N.C. 573; Co., Rudd, 155 S.E. Maxton Auto Inc. v. E. S. 176 N.C. Appeals of S.E. The Court reasoned that provision its of lien lost claim because of the in G.S. 44A-3 reacquisition voluntarily property relinquished that “the shall recounted, not reinstate the lien.” Under circumstances above voluntarily relinquished property we do not think that the was by delivery giving by when obtained its defendant a worthless check.
[2] Plaintiff’s automobile was not wrongfully taken into pos wrongfully under session nor was it held defendant’s lien since showing extinguished. (d) 44A-2 no G.S. was not Further there is equal footing Rather was not on defendant. merely this chose to enter into evidence discloses that negotiations advice of coun further with defendant without negotia temporarily in court. result of these sel who was As a concerning requirements tions, plaintiff acceded to defendant’s THE COURT SUPREME IN doing what stated that he knew the balance due. Plaintiff voluntary This awas when he the written instruments. squarely adjustment place it dispute. case of a The facts holding Whitley, supra. Thus the Smithwick within the holding that release was obtained erred in question goods; however, remains crucial there paper writ- of the note and the effect the execution parties ing, “A,” as a Exhibit referred to release. claim, [3, 4] giving abandoning or up release is the right person exists or the whom claim release, is to In order for there be an immediate exercised. discharge. present State instrument must contain words *8 504; Northrop, 558, 106 66 Ex. Rel. McClure v. Am. 93 Conn. Atl. voluntary 2d, 28 is and at 704. waiver a Tur. Release § relinquishment a It of known or benefit. is intentional usually question A., Inc., v. 242 a intent. Green P.O.S. of of agreement 78, called a re be N.C. 87 2d 14. Whether S.E. designation given not im
lease, a or some other is waiver Obviously “A” portant defendant’s Exhibit is to our decision. subject recognized rules of a contract and is therefore of contracts. construction
intention of the of [5] the The heart of contract, the parties a contract purposes must be determined is the intention of the contract, of the from the the subject parties. The language matter the exe parties the time contract is and situation of the at the 622; 407, Scarborough, 2d Lane 284 N.C. 200 S.E. cuted. v. Reynolds Co., Highway v. A. 272 N.C. State Commission L. 618, Any ambiguity written contract 2d in a 159 S.E. 198. writing. against the Wood- party prepared construed the who Authority, Hopkins Contracting Ports 284 v. N. State Co. C. Co., 473; 732, Root v. Allstate Ins. 272 N.C. N.C. 580, 202 2d S.E. Medford, 829; v. Bank & Trust Co. 2d Wachovia 158 S.E. Realty Batson, 141; 146, 128 2d Salem Co. S.E. N.C. 2d N.C. S.E. only ambiguity us is contained in the contract before following paragraph the contract: acknowledge my This will indebtedness parts finish representing due the balance for labor drag my that I have no defenses or set-offs race grounded against upon poor workman- indebtedness such objections. ship or other FALL TERM y.
Adder Holman & set-off temporaneously fendant was livered to $2,500. attorneys [6] This $1,538.03. in the event defendant The sole for the language appears that there be executed note. The Nowhere in the contract objection parties when he arrangements interposed to be restricted to that delivered resorted to a the automobile was to be agreement to this made is there certified check for agreement suit' reached any defense on the reference payment or con de de a to a plaintiff’s pending negligence release of claims based on implied warranty. or prepared Defendant the contract after telephone biguity lawyer any consultation with his am therefore
in the contract must be resolved defendant. easily Defendant dispose could have used words of release to plaintiff’s pending warranty negligence claims based on parties. this been the intent of There This it did not do. fore, upon language contract, consideration of the apparent purpose par of the contract and the situation execution, judge ties at the time its we hold that the trial dismissing plaintiff’s ground erred in that there action on operating plea was a hold valid release as a in further bar. We judge correctly trial entered on $1,538.03. All counterclaim the amount of shows the evidence understandingly plaintiff knowingly, and for valuable consideration amount note neglected had refused the sum due the note. *9 the with direc-
This cause is remanded to Court Superior tion that it that be remanded to Davidson with Court order against plaintiff be entered on defendant’s a counterclaim and that there be new trial on causes negligence warranty. upon implied of action based and Ap- stated, the the For reasons decision of the peals is
Modified and affirmed. Sharp dissenting.
Chief Justice (1) majority’s on I in decision that am accord July upon plaintiff’s had a mechanics’ lien May prior for work done to 4 and therefore automobile possession it, plaintiff paid until retain the dis- May $1,530.03; of 4 in the honored check amount of and THE COURT SUPREME IN v. Holman &
Adder goods (2) duress defendant did not obtain that July plaintiff on 21 and note which contract respectively). A I (introduced B in as Exhibits evidence majority opinion am with the also in accord statement “ signed plaintiff that note and contract his was when [t] voluntary adjudgment dispute.” dispute a This whether a was alleges failure, plaintiff de- .the mechanical which automobile’s run, veloped was in the car on a test caused defendant’s negligent reconstructing by plaintiff’s work in vehicle or over-revving engine thereafter.
My majority’s holding that Exhibit A is dissent is to Although label, plaintiff a release. the contract no bears himself testified it release that defendant’s that was a representative July that told him before he it on 21st sign only way get day “the could the car that towas [he] anything. responsible release that wouldn’t hold them [he] perceive ambiguity but, . . .” I in it can no Exhibit were possible it, interpretation to construe one into which ambiguity. parties put on their would eliminate the contract says testimony it Plaintiff release establishes regarded given certainly release, that con- it as a in of its of a lien on the sideration waiver valid automobile. why compelling plaintiff The record no reason discloses sitting July had 21st. It had been have automobile on day good Apparently defendant’s lot “for a while.” on that plaintiff just had had decided he wanted the and defendant long enough. impres- it to have been under the He also seems lawyer lawyer sion had with his defendant’s plaintiff possession defendant would the car if surrender paid $2,500.00, the bank note the amount of which defendant proceeds endorsed for which part However, of the bill owed defendant. testified, when he tendered the certified check for car, him representatives told demanded the day way get there the car also was no he could without paying unless the dishonored check the amount of got making them a court order “went sheriff and money.” payment How- release the without automobile *10 “they repre- ever, lawyer,” had called their defendant’s after signed day get that he that could the car he sentatives “a release and if anything” responsible that wouldn’t hold them he $1,530.03. a note for FALL TERM 1975 495' Adder Holman & my On said, cross-examination “It was idea to
sign money; signed the note for the the note for I signed when I Thereafter, examination, release.” on redirect said, suggest sign he “I $1,500.00.” did not I that the note for However, he never retracted his statement that he “read the signing. release” and knew what he was He also said he knew lawyer day that his available him on that he made no deliberately effort to contact In him. other he words went ahead counsel, on his own without the advice of his arrangements. made his own In consideration defendant’s lien, twenty-day waiver of its extension of time dishonored cheek in $1,530.03 (which amount he did not July have on 21st), and the waiver of all interest if August indebtedness was edged 10th, plaintiff before acknowl- he against had “no such indebted- defense set-off grounded upon poor ness workmanship objections.” or other (Emphasis added.) objections only Other could have referred to the manner in which the car was rebuilt. If seeking defendant had to recover first filed an action warranty its note preserved could have claim his only by pleading They them in been his answer. would have compulsory 1A-1, set-offs and counterclaims under Rule G.S. 13(a), they since However, arise out of the same transaction. majority correctly holds, A, the execution of Exhibit
plaintiff precluded making any himself from note defense grounded upon poor workmanship. As I it he did that and see against negligence more. He also renounced claims warranty breach of when he said Exhibit A: “This will ac- knowledge by $1,530.03 representing indebtedness of the bal- parts any drag ance due labor and to finish race car against I have no defenses or set-offs such indebtedness grounded upon poor workmanship objections.” or other foregoing acknowledgment the face we —which plaintiff’s testimony hold to be valid —and in face the. representative get told him he couldn’t the car un responsi less “a release that wouldn’t them hold [he7] (emphasis anything,” added) ble how we can now hold that against plaintiff has released his claims- defendant as a defense offensively to its note but retained them to be used as the basis separate for a ing, cause action hold defendant? Such a illogical. my impermissible totally view, is *11 THE SUPREME COURT IN Cooper State the My and affirm is reverse vote to judgment Superior Court. Copeland joins in this dissent. Justice COOPER STATE OF v. ALFRED LEE NORTH CAROLINA 10No. 1975)
(Filed 5 November exception appeal 1. Criminal Law 161— as to § exception judgment and, appeal, itself, even in is an to assignment presents error, for review the absence an any appearing Supreme question error Court the of whether there is proper. face of record — Breakings burglary Burglary defined neces- 2. and Unlawful 3—§§ sity specifying felony in indictment degree degree, Burglary, is in the first second whether dwelling night- breaking entering of house of another in the a felony therein, and the indictment with the to commit a time for to have intent alleged burglary felony specify must which the defendant is entering. breaking to commit at the time of the intended charging Breakings Burglary bur- §3— indictment 3. and Unlawful — specified glary— assaulting felony sexually female no a alleged an broke and entered An indictment which that defendant “by felony therein, apartment, sexually assaulting wit: to commit a to intent charge female,” was insufficient a degree burglary, State, since, under the law of this there with first “sexually assaulting female,” phrase felony known but such no enough to both felonious and misdemeanor assaults is broad include against a female. sup- Breakings Burglary 3— indictment insufficient § and Unlawful — wrongful breaking sufficiency port burglary conviction entering conviction Though was tried was which defendant the indictment under sup- burglary, was sufficient as an indictment it insufficient port wrongfully breaking 14-54(b) under conviction G.S. building. entering Appeal February McLelland, the Jat defendant from Session Wake. 1975 Criminal trial, de- indictments, separate consolidated for
Upon charges burglary brought first trial on fendant was degree. guilty of degree He rape was found in the second