117 N.C. 66 | N.C. | 1895
Construing the responses to the issues in connection with the pleadings and evidence it is clear that there is no contradiction between the finding on the third issue and that on the first and second. It would simply be “sticking in the bark” to construe the words “if so” which appear in the third issue, but not in the response, as having that effect. The jury to these issues simply found that the defendant did not rent the. land of Grubbs but that Grubbs made him advances for which the defendant owes him to the amount found in response to the 4th issue.
There being evidence tending to show that Grubbs’ name was not in the lease when signed by the defendant, it was competent for him to testify that as a matter of fact he had rented no land of Grubbs that year; this was admissible, not to contradict the paper writing but if the jury should find Grubbs’ name was not in the paper when signed to negative any verbal contract of renting from Grubbs of that, or any other land. The defendant having testified that he had rented the land in question of Stan-
Tbe plaintiff’s bond being for the return of tbe property if adjudged against bim (The Gode, Sec. 324), neither the plaintiff nor bis surety can complain that when tbe property, or its value, is returned to the defendant tbe latter must forthwith hand it over to the intervener. That matter in no wise concerns tbe plaintiff. Tbe property being adjudged not to be bis, by bis bond be must return it or account for the value of it. Indeed, if the judgment bad directed the return not to the defendant, but to tbe intervener direct, because of its being due him by the defendant, the plaintiff’s bond would be responsible for tbe execution of the judgment. Barrington v. Skinner, at this term. The Gode does not favor circuity of actions, and the gist of the bond is the return of the property taken or its value and the disposition of it, whether direct to the defendant or to the interpleader as the defendant’s assignee, does not concern the plaintiff.
The judgment disposes of the controversy so far as the plaintiff is concerned. He cannot be heard to object that judgment was not rendered in favor of the intervenof, as might have been done. Barrington v. Skinner, supra. Gode, Sec. 424 (1).
The judgment ought properly to have been in the alternative for the return of the property, or if that cannot be had, for its value with damages. Code, Sec. 431; Council v. Averett, 90 N. C., 168; Hall v. Tillman, 103 N. C., 276. The judgment should be thus modified and affirmed.
Modified and Affirmed.
