2 S.E.2d 364 | N.C. | 1939
Civil action tried upon the following issues:
"1. Did the defendant, Henry G. Vandiford, verbally agree with the plaintiff, John B. Vandiford, at or before the execution and delivery of the deed by the Land Bank to Henry G. Vandiford, that he, Henry G. Vandiford, would take title to the lands described in the complaint and hold them in trust for the plaintiff, as alleged in the complaint? Answer: `Yes.' *462
"2. Was the plaintiff ready, willing and able at all times to comply with the terms of the agreement as alleged in the complaint? Answer: `Yes.'
"3. Is the plaintiff's cause of action barred by the three year statute of limitations as alleged in the answer? Answer: `No.'
"4. Is the plaintiff, John B. Vandiford, by reason of atornment estopped to maintain this action as alleged in the answer? Answer: `No.'
"5. Is the plaintiff, John B. Vandiford, estopped to maintain this action by reason of his laches as alleged in the answer? Answer: `No.'
"6. Did the defendant, Henry G. Vandiford, in violation of his agreement, sell and convey the lands in the sum of $11,000.00 and retain the proceeds thereof as alleged in the complaint? Answer: `Yes.'
"7. In what amount, if any, is the plaintiff, John B. Vandiford, indebted to the defendant, Henry G. Vandiford, for the purchase price, interest, improvement and taxes? Answer: `None.'
"8. In what amount, if any, is the defendant, Henry G. Vandiford, indebted to the plaintiff for money paid to the defendant for the years 1933, 1934, 1935, 1936, and 1937? Answer: `None.'
"9. What amount, if any, is the plaintiff, John B. Vandiford, entitled to recover of the defendant, Henry G. Vandiford, on account of the breach of contract in the sale of said lands in the sum of $11,000.00, as alleged in the complaint? Answer: `$5,000.00.'"
There was a motion by the defendants to set aside the verdict, which was overruled. Exception.
From judgment on the verdict, the defendants appeal, assigning errors.
It is apparent from a perusal of the record that the last three issues were answered without regard to the pleadings, the evidence, the contentions of the parties, or the charge of the court. Mayhap the jury undertook to compromise the case. Bartholomew v. Parrish,
The defendant contended from the evidence that the 7th issue should be answered in the sum of $16,348.40; while the plaintiff contended that it should be answered in the sum of $8,665.44. The court instructed the jury to answer the issue accordingly as they should find the facts to be. The answer is "Nothing." *463
The eighth issue was submitted under an instruction that it should be answered in the sum of $10,047.83, according to plaintiff's evidence and contention, or $9,026.82 according to the defendant's admission. It is answered "Nothing."
The verdict is at variance with the pleadings, the evidence, and the theory of the trial. The defendants' motion to set it aside should have been allowed. Daniel v. Belhaven,
There are other exceptions appearing on the record worthy of consideration, especially those pertaining to the cross-examination of the defendant, but as they are not likely to arise on the further hearing, present rulings thereon will be omitted.
A careful perusal of the record engenders the thought that a venire denovo should be ordered. Kinney v. Beverley,
Venire de novo.
