24 S.E. 712 | N.C. | 1896
Lead Opinion
If we are able to understand the record in this case, the following are the facts: The defendant agreed to cht logs from certain lands arid put them into the Tennessee river for the plaintiff, and the latter agreed to pay for the logs so delivered $4.25 per 1,000 feet; that it was agreed that plaintiff might retain one-third of the money for the logs, as they were delivered, until all the timber from certain lands was delivered ; that logs were delivered to the amount of $1,918.46, and paid for, except one-third, $639.46, which was retained, and that plaintiff advanced $200 to defendant to enable him to prosecute his work ; that defendant cut some logs on a 75 or 100 acre tract, but was enjoined from removing them, and that it cost plaintiff $125 more than the contract price to put those logs in the river.
The plaintiff sued in a justice’s court for the $200 advanced, and defendant pleaded payment, and also a counter-claim for $200, waiving and releasing all in excess of $200. The plaintiff’s witness and agent proved that it cost him $125 more than the contract price to put the cut logs in the river, by reason of the remote distance from the river, and that the $639.46 was retained by plaintiff, and defendant, admitted that plaintiff advanced him $200. The court submitted these issues :
“ 1. Is defendant indebted to plaintiff, and if so, in what amount ? Ans., ‘Nothing.’
“ 2. Is plaintiff indebted to defendant, and if so, in what amount ? Ans., ‘ $200.’ ”
His Honor charged the jury that “the measure of damage to the plaintiff would be the $125 that he had to pay in excess of the contract price to put in the timber off this tract, and that, if the jury should find the fact to be in accordance with the evidence of the plaintiff, the defend
This was the only exception relied on in this Court. Judgment according to the verdict. We see no error in the instruction, as it seems agreeable to the facts and the evidence. The case may be stated thus :
Amount retained from logs delivered to plaintiff.$639.46
Or. Amt. advanced defendant.$200.00
Cost of putting logs in river. 125.00
Released for jurisdiction. 114.46
Counter-claim. 200.00
$639.46 $639.46
If the conclusion is correct, it is plain lliat the plaintiff has sustained no injury.
Affirmed.
Concurrence Opinion
(concurring) : Concurring in the result, I cannot agree to the process by which the conclusion is reached, as it recognizes jurisdiction in a justice of the peace to adjudicate that the defendant was indebted to the plaintiff $325, and that the plaintiff was indebted to the defendant $525, exclusive of $114.25 remitted to give jurisdiction. I do not think that a justice of the peace has such jurisdiction. The plaintiff sued for $200. The defendant pleaded that this $200 had been paid, and pleaded a counter-claim of $200, remitting all his claim against the plaintiff in excess of $200, i. e. remitting $239.25. Of such proceeding the justice had jurisdiction, and .the justice’s judgment, holding as it did that the plaintiff’s claim had been paid and that the defendant should have judgment on his counter-claim for $200, was valid. But the plaintiff’s counter-claim of $125 to defendant’s counter-claim could not be considered by the justice, for two reasons: first, because to recognize it would be in
Lead Opinion
CLARK and MONTGOMERY, JJ., concur in the result, but dissent so far as there is any recognition of jurisdiction of the justice to adjudicate that defendant was indebted to the plaintiff in the sum of $325 and that plaintiff was indebted to defendant $525. If we are able to understand the record (965) in this case, the following are the facts: The defendant agreed to cut logs from certain lands and put them into the Tennessee River for the plaintiff, and the latter agreed to pay for the logs so delivered $4.25 per thousand feet; that it was agreed that plaintiff might retain one-third of the money for the logs, as they were delivered, until all the timber from certain lands was delivered; that logs were delivered to the amount of $1,918.46, and paid for, except one-third, $639.46, which was retained, and that plaintiff advanced $200 to defendant to enable him to prosecute his work; that defendant cut some logs on a 75 or 100-acre tract, but was enjoined from removing them, and that it cost plaintiff $125 more than the contract price to put those logs in the river. The plaintiff sued in a justice's court for the $200 advanced, and defendant pleaded payment and also a counterclaim for $200, waiving and releasing all in excess of $200. The plaintiff's witness and agent proved that it cost him $125 more than the contract price to put the cut logs in the river, by reason of the remote distance from the river, and that the $639.46 was retained by plaintiff, and defendant admitted that plaintiff advanced him $200. The court submitted these issues:
1. "Is defendant indebted to plaintiff, and if so, in what amount?" Answer: "Nothing."
2. "Is plaintiff indebted to defendant, and if so, in what amount?" Answer: "Two hundred dollars."
His Honor charged the jury that "the measure of damage to the plaintiff would be the $125 that he had to pay in excess of the contract price to put in the timber off this tract, and that if the jury should find the fact to be in accordance with the evidence of the plaintiff the defendant would be entitled to a verdict of $200." Plaintiff excepted. This was the only exception relied on in this (966) Court. Judgment according to the verdict.
We see no error in the instruction, as it seems agreeable to the facts and the evidence. *604
The case may be stated thus:
Amount retained from logs delivered to plaintiff..... $639.46
Cr. amt. advanced defendant.................... $200.00
Cost of putting logs in river ................. 125.00
Released for jurisdiction...................... 114.46
Counterclaim................................... 200.00 ------- ------- $639.46 $639.46
If the conclusion is correct, it is plain that the plaintiff has sustained no injury.
Affirmed.