Smith v. Lumber Co.

Feb 27, 1906
Versions:140 N.C. 375
53 S.E. 233
Walker, J.,

after stating the case: The defendant relied upon the judgment recovered before the justice of the peace for the second month’s instalment of salary as a bar to this action, and assigns as a reason why it should have this effect that there was a single contract to pay a salary by monthly instalments, and as all the instalments were over-due at the time the suit was brought and the judgment rendered, the plaintiff was required to sue for all of them in one action and could not make any one instalment the subject of a separate suit and obtain judgment for it, without losing the right to recover for -the others. The interesting question thus raised in the argument is fully discussed in Jarreit v. Self, 90 N. C., 478, and that case has since been cited with approval in Kearns v. Heitman, 104 N. C., 332, and McPhail v. Johnson, 109 N. C., 571. But the pleadings do not present this matter for our consideration and we do not therefore pass upon it. In order to derive any benefit from a former judgment as a bar to the. further prosecution of a pending suit, it must be properly pleaded, as such a defense is not covered by a plea of the “general issue” or anything that is equivalent to it. It is provided by statute that the answer shall contain a denial of the complaint, or of any part thereof, and also a statement in a plain and direct manner of any facts constituting a defense or counterclaim, Revisal, section 1460. This court has repeatedly held that such defensive matter as is now *378 relied on, even in actions before justices of the peace, must be specially pleaded and will not be considered under a plea merely denying the indebtedness alleged in the complaint The cases in which this rule was laid down were not materially different in their facts from the case at bar. Indeed, in several of them, the facts were substantially identical. Blackwell v. Dibbrell, 103 N. C., 270; Hicks v. Beam, 112 N. C., 644; Montague v. Brown, 104 N. C., 161; Cotton Mills v. Cotton Mills, 115 N. C., 487; Curtis v. Piedmont Co., 109 N. C., 405; Harrison v. Hoff, 102 N. C., 128; Hawkins v. Hughes, 87 N. C., 115. Assuming that there was proof in this case, as the defendant’s counsel contended there was, that a judgment for the second instalment had previously been recovered before a justice of the peace, the court below could not have based an instruction upon it, as it is a well settled principle that there must be allegation as well as proof, and they must correspond. In this case the defendant merely denied that he owed the plaintiff, and did not specially plead the former judgment. There was no motion to amend, and, in the present state of the pleadings, the court was clearly right in refusing the defendant’s prayer for instructions, if we are to follow established precedents. But there was an error committed in that portion of the charge upon the second issue, which is set out in our statement of the ease. It is apparent from this instruction the court assumed that the defendant had discharged the plaintiff. An affirmative answer to the first issue did not necessarily call for the same kind of answer to the second issue. Besides, the evidence relating to the discharge of the plaintiff by the defendant was not all one way, and even if it had been, it was for the jury to find the fact, and in order to do so, to pass upon the credibility of all the witnesses. The testimony of the witness Smith was proper for the consideration of the jury upon this issue. Even if it may fairly be regarded as slight, it is yet, without taking into account the excluded portion, some evidence of the fact *379 that the plaintiff had quit the service of the defendant voluntarily. In no view of the testimony do we think the court’s peremptory instruction upon the second issue can be sustained, for where there is any evidence that reasonably tends to prove the fact in issue, or where the credibility of the witnesses introduced by either party must be passed upon, the question of fact involved is always one for the jury under proper instructions from the court as to the law.

The error in the charge entitles the defendant to another trial.

New Trial.