A. J. Higgins Lumber & Export Co. v. Elizabeth City Shipyard Co., 181 N.C. 442 (1921)

June 3, 1921 · Supreme Court of North Carolina

181 N.C. 442

A. J. HIGGINS LUMBER AND EXPORT COMPANY, Inc., v. ELIZABETH CITY SHIPYARD COMPANY.

(Filed 3 June, 1921.)

1. Courts — Discretion—Argument to Jury — Opening and Conclusion— Trials.

Wliere both parties to the action Lave introduced evidence on the trial, the right to open and conclude argument is discretionary with the trial judge, and not reviewable on appeal. Supreme Court Rules Nos. 3 and 6.. 164 N. C., 562-3.

2. Evidence — Accounts—Admissions—Appeal and Error — Trials.

Where itemized statements of accounts are involved in the matters in-controversy in an action, an exception that they were not verified according- to law becomes immaterial when they are admitted to be correct by-the appellant.

3. Evidence — Nonsuit—Trials.

Where the plaintiff’s claim for lumber sold and delivered to the defendant is admitted by the latter, who sets up a counterclaim in damages, his motion for judgment as of nonsuit upon the evidence cannot be-sustained.

4. Issues — Evidence—Admissions—Statements of Account — Appeal and-Error.

Where the only question presented on the trial is whether the defendant is entitled to recover -damages as a deduction from the contract price-of lumber sold and delivered to him, it will not be held for error that it was submitted on one issue; and nothing else appearing, it will be-presumed, on appeal, that the question was presented under correct instructions from the court, and the issue correctly answered in the verdict.

Appeal by defendant from Calvert, J., at tbe November Term, 1920, of Pasquotank.

Tbe plaintiff brought tbis action against tbe defendant for lumber sold and delivered and for wbicb tbe defendant agreed to pay a specified price. Tbe defendant admitted tbe purchase of lumber and tbe price agreed upon, but alleged that tbe lumber actually received was not 90 per cent heart as purchased, as a result of wbicb tbe defendant bad been damaged to tbe extent set up in its counterclaim. Tbe defendant, therefore, asked for tbe recovery of damages upon its counterclaim.

At tbe beginning of tbe action tbe defendant admitted having ordered from tbe plaintiff tbe quality and character of lumber described in tbe complaint, and having agreed to pay for tbe same upon delivery tbe price set out therein, and stated that its only contention was that tbe lumber delivered was not of tbe character contracted for, by reason of wbicb it bad been damaged as set out in its counterclaim, and asked upon tbis admission that it be allowed to take tbe burden and tbe opening and conclusion in tbe introduction of evidence and tbe argument of tbe case. Tbe court declined, stating that tbe burden of proof was on tbe plaintiff to show that tbe lumber delivered was of quality contracted for.

Tbe defendant excepted. Both plaintiff and defendant introduced evidence. Tbe amount of tbe plaintiff’s .demand is $2,420.12, and of tbe defendant’s counterclaim, $1,250.

Tbe plaintiff introduced verified statements of tbe accounts of tbe sales of lumber, and tbe defendant excepted because not verified according to law.

Tbe defendant made a motion for judgment of nonsuit, wbicb was overruled, and defendant excepted. It also tendered an issue on its counterclaim and excepted to tbe refusal to submit it.

Tbe jury returned tbe following verdict:

“1. Is defendant indebted to plaintiff, and if so, in what sum? A. ‘$1,936.57.’ ”

There was a judgment for tbe plaintiff on tbe verdict, and tbe defendant appealed.

Meelcins & McMullan and George J. Spence for plaintiff.

Ehringliaus & Small for defendant.

Allen, J.

1. Both parties having introduced evidence on tbe trial, tbe determination of tbe right to open and conclude tbe argument was discretionary, and is not reviewable. See Rules 3 and 6 of Superior Court, approved by Supreme Court, 164 N. C., 562-3.

2. It was not necessary to introduce the itemized statements of accounts, but they could not have been prejudicial to tbe defendant, because they showed nothing except the quantity of lumber bought by the defendant, the price agreed on, and the total, all of which was admitted by the defendant.

3. This admission also made it impossible to grant the motion for judgment of nonsuit, as did also the tender in the answer of judgment in favor of the plaintiff for $1,225.

4. Ordinarily the defendant would have been entitled to a separate issue on its counterclaim, but it appears from the record that the defendant was not asking for an affirmative judgment, but was seeking to reduce the plaintiff’s demand by the matters alleged in the answer, and this contention of the defendant could well be presented under the issue submitted to the jury, and we must presume this was done, under fair and proper instructions, as the charge is not sent to this Court.

Indeed, it appears the counterclaim was allowed in part, as the plaintiff’s demand, which was admitted, amounts to $2,420.72, and the verdict is for $1,936.57, which cannot be reconciled except upon the theory that the difference between the two amounts, $484.15, is the damages awarded the defendant on the counterclaim.

We find no error committed on the trial.

No error.