49 S.E. 49 | N.C. | 1904
This is an action for specific performance of a contract to bequeath the fifty shares of bank stock, which the testator then owned, to the feme plaintiff absolutely and in her own right, in consideration of services to be rendered by her to the testator. Her husband is joined as coplaintiff, but as he has no interest in the action it was unnecessary. The Code, secs. 178 (1) and 183. Upon issues submitted the jury found *95 that the testator so contracted, that the feme plaintiff faithfully and fully performed the services stipulated for, but that the testator bequeathed the said bank stock, not absolutely to plaintiff in her own right as agreed, but to a trustee for the benefit of plaintiff during her life and after her death to her children, and if she should die without issue, then to the grandchildren of the testator. The court having rendered judgment in favor of the plaintiffs, the defendants appealed, assigning (93) as errors:
1. The permission to examine a medical witness out of his order upon assurance that the preliminary evidence to make it competent would be introduced later, which was done. This exception was properly abandoned here. It was a matter in the discretion of the trial court. Ripley v.Arledge,
2. The exception for refusal to nonsuit at the close of plaintiff's evidence was waived by the introduction of evidence by defendant, without renewing the motion at the close of all the evidence. Jones v. Warren,
3. Exceptions to refusal to grant prayers concluding, "plaintiff is not entitled to recover," cannot be sustained under the present system, in which the jury does not render a general verdict, but responds to specific issues. Witsell v. R. R.,
It is true, as the defendant claims, that a party cannot claim benefits under the will and against it (Brown v. Ward,
The defendants moved for judgment on the verdict upon the ground that the decree of specific performance would be inequitable and unjust. The motion was properly denied. The contract was (a) for a valuable and fair consideration, (b) fair, just, and mutual, (c) not procured by undue influence or imposition, (d) plaintiff fully and faithfully performed her part, and (e) the decree is not oppressive, harsh, or inequitable, nor will it work hardship and injustice to any one. Boles v.Caudle,
No error.
Cited: Roberts v. Baldwin,
(96)