Lutz v. Coastal Construction Co., 193 N.C. 848 (1927)

May 18, 1927 · Supreme Court of North Carolina

193 N.C. 848

E. R. LUTZ et al. v. COASTAL CONSTRUCTION COMPANY.

(Filed 18 May, 1927.)

Appeal by plaintiffs from Barnhill, J., at August Term, 1926, of Columbus.

No error.

Action to recover for services rendered and expenses incurred by plaintiffs in behalf of defendant with respect to defendant’s application for a bond which defendant was required to file with the State Highway Commission to secure the performance by defendant of its contract with said commission.

The issues submitted to the jury were answered as follows:

1. Did the defendant apply to the National Surety Company, through its agent, E. R. Lutz, for the issuance of a performance bond covering the construction of Highway Project No. 330, Columbus County, as alleged? Answer: Yes (by consent).

: 2. If so, did the National Surety Company accept said application and agree to deliver such bond in accordance with the agreement between the defendant and the plaintiff? Answer: No.

3. If so, did the defendant fail and refuse to accept and pay for same? Answer:

Powell & Lewis for plaintiffs.

Lyon & Burns for defendant.

Per Curiam.

The jury having answered tbe second issue “No,” plaintiffs’ assignments of error, based upon exceptions to tbe refusal of tbe court to submit issues as tendered by plaintiffs, and to tbe exclusion of evidence pertinent only to other issues, need not be considered on their appeal to this Court. There are no assignments of error with respect to tbe second issue. In no event could plaintiffs recover upon tbe cause of action set out in tbe complaint without an affirmative answer to tbe second issue. Tbe court properly instructed tbe jury that if they answered tbe second issue “No,” they need not answer tbe third issue.

There is no error on tbe record, and tbe judgment must bé affirmed.

No error.