Dozier v. . Wood, 181 S.E. 336

181 S.E. 336 | N.C. | 1935

Civil action to recover for fertilizer and supplies sold by plaintiff and used by tenants on defendant's farm.

The plaintiff is a merchant in Currituck County. The defendant is a resident of Pasquotank County and the owner of a farm in Currituck, which was rented to W. E. Davis and W. B. Davis, on shares, during the year 1931.

On 13 January, 1931, the defendant, in company with his tenants, had a conversation with the plaintiff relative to supplies for the farm.

Plaintiff testified: "Mr. Wood said he wanted the Davises to buy everything from me that I handled that they could buy and had to have. He said their bills would have to be paid for whatever was furnished to that farm. Mr. Wood had to get some mules for the boys, which he paid for. With reference to the seed and fertilizer, he said it would be paid for. He said that he would pay for it if they didn't, and later he gave me a check for $305.00. The balance due on that account is $742.05. I furnished the credit to Mr. Wood. I would not have furnished the seed and fertilizer to W. E. and W. B. Davis . . . The Davis boys used them (seed and fertilizer), but my understanding was Mr. Wood would pay for them. . . . I furnished the stuff to Mr. Wood for the Davis boys. . . . (Cross-examination): Mr. Wood said that the fertilizer would be paid for by that farm. I do not recall the exact words. I told Mr. Morris that besides the Davis boys being liable, Mr. Wood was liable by virtue of this conversation. That is what I say now."

W. E. Davis testified: "I heard Mr. Wood tell him that he would see that he was taken care of."

W. B. Davis testified: "Mr. Wood told Mr. Dozier that he would see he got his money for anything furnished us."

From a judgment of nonsuit entered at the close of plaintiff's evidence, he appeals, assigning errors. Little can or need be added to what was said in the two opinions filed in the case of Peele v. Powell, 156 N.C. 553, 73 S.E. 234, on rehearing, 161 N.C. 50, 76 S.E. 698, on the difference between an original promise, which is not within the statute of frauds, and a superadded one, which is within the statute. C. S., 987. The difference in statement is clear enough. Difficulty often arises, however, in determining whether the evidence in a given case places it in the one category or the other. Gennett v. Lyerly, 207 N.C. 201, 176 S.E. 275; Garren v.Youngblood, 207 N.C. 86, 176 S.E. 252. The solution, in such instances, generally lies in summoning the aid of a jury. Whitehurst v. Padgett,157 N.C. 424, 73 S.E. 240. And so, in the instant case, we think the evidence is susceptible of an interpretation which requires its submission to the twelve. Taylor v. Lee, 187 N.C. 393, 121 S.E. 659.

On demurrer to the evidence or motion to nonsuit under the Hinsdale Act, C. S., 567, the plaintiff is entitled to a liberal view of evidence.Lincoln v. R. R., 207 N.C. 787, 178 S.E. 601. Discrepancies and contradictions, even in plaintiff's evidence, are matters for the jury, and not for the court. Newby v. Realty Co., 182 N.C. 34, 108 S.E. 323;Shell v. Roseman, 155 N.C. 90, 71 S.E. 86.

The true character of a promise, whether original or superadded, does not depend altogether on the form of expression. The situation of the parties should be considered and whether they understood it to be collateral or direct. Dale v. Lbr. Co., 152 N.C. 651, 68 S.E. 134;Davis v. Patrick, 141 U.S. 479; Emerson v. Slater, 63 U.S. 28.

Reversed.