Duffy v. Phipps, 182 N.C. 778 (1921)

Dec. 7, 1921 · Supreme Court of North Carolina

182 N.C. 778

T. J. DUFFY v. J. HENRY PHIPPS.

(Filed 7 December, 1921.)

Appeal and Error — Decision of Supreme Court — Retrial—law of the Case.

The opinion of the Supreme Court rendered in a former appeal in the same action is the law of that case, and where, upon the overruling of a demurrer and a trial, the Superior Court has ruled the law in accordance with the opinion, no error on the second appeal will be found.

Appeal by defendant from Finley, J., at tbe May Term, 1921, of GrUILFORD.

Civil action to recover damages for an alleged shortage in acreage in a tract of land bought by plaintiff from the defendant.

The contract of purchase is set out and construed in this same case as reported on the former appeal in 180 N. 0., 313.

Upon trial in the Superior Court, the jury returned the following verdict:

“1. Was the deed from the defendant to the plaintiff made pursuant to the paper-writing offered in evidence? Answer: ‘Yes.’

“2. If so, was there a shortage of acreage in the land conveyed by the defendant to the plaintiff, and if so, how much? Answer: '40 43/100-acres.’

“3. What amount, if any, is the plaintiff entitled to recover of the defendant? Answer:'$4,043.50.’”

From a judgment on the verdict in favor of plaintiff, the defendant appealed.

Justice & Broadhurst, Oliver O. Cox, and Brooks, Hines & Smith for plaintiff.

Fentress & J eróme for defendant.

Pee CuRiam.

From a perusal of the record it appears that the cause has been tried in accordance with our former interpretation and construction of the contract of sale entered into between the parties. The case was here before on appeal from a judgment overruling the defendant’s demurrer; and we deem it unnecessary to repeat our previous holding, which has now become the law of the case. Public Service Co. v. Power Co., 181 N. C., 356; Lewis v. Nunn, ante, 119.

After a full investigation of the defendant’s exceptions and assignments of error, we have discovered no sufficient reason for disturbing the result.

No error.