24 S.E. 770 | N.C. | 1896
Before the jury was impaneled the defendant moved to dismiss the action for want of jurisdiction, the action having been instituted in a justice's court to reform and correct an alleged error in calculation in a settlement between the parties.
The complaint was as follows: His Honor reserved his decision in the motion to dismiss and submitted an issue to the jury as follows: "In what sum, if any, is defendant indebted to plaintiff?" Answer: "$29 and interest up to date." His Honor then granted the defendant's motion to dismiss, and plaintiff appealed.
A justice of the peace has no jurisdiction to administer equity affirmatively (Doroughty v. Sprinkle,
The plaintiff complained that the defendant owed him a balance of $83.50; that by mistake in calculation — a mutual mistake of fact by *199
both parties — the balance was stated to be $54.50, and the plaintiff on that understanding accepted $50 in full payment of the $54.50, which both parties supposed to be due, but on discovering the mistake the plaintiff demanded $29 still due, and, payment being refused, brings this action. Had the agreement been to receive the $50 in satisfaction of the $83.50, the agreement would have been binding (The Code, 574), though it would have been nudum pactum prior to that act. Fickeyv. Merrimon,
The facts being found by the verdict, and the exception bringing up the erroneous ruling of the judge in refusing judgment thereon for the plaintiff, a new trial is not necessary, but the judgment dismissing the action is reversed (Bernhardt v. Brown, post, 700) and the cause is remanded, that judgment for the plaintiff may be entered upon the verdict below.
Reversed.
Cited: Sams v. Price,