L. P. Ellis Motor Co. v. Belcher, 204 N.C. 769 (1933)

June 14, 1933 · Supreme Court of North Carolina

204 N.C. 769

L. P. ELLIS MOTOR COMPANY v. R. E. BELCHER et al.

(Filed 14 June, 1933.)

Trial P a—

The refusal to submit issues tendered is not error when the issues tendered are not raised by the pleadings, C. S., 582.

Appeal by defendant from Moore, Special Judge, at September Term, 1932, of Pitt.

No error.

This is an action to recover from the defendant an automobile in his possession, which the plaintiff had sold to Dick Forman, retaining title until the purchase price was paid by an agreement in writing which was duly recorded. The defendant denied the allegations of the complaint. The issues submitted to the jury were answered favorably to the plaintiff.

From judgment tbat plaintiff recover of tbe defendant tbe automobile described in tbe complaint, tbe defendant appealed to tbe Supreme Court.

Arthur B. Corey for plaintiff.

Charles H. Whedbee for defendant.

Per Cueiam.

Tbe issue tendered by tbe defendant at tbe close of tbe evidence was not raised by tbe pleadings. There was, therefore, no error in tbe refusal of tbe court to submit this issue to tbe jury. C. S., 582.

There was no evidence at tbe trial tending to show tbat defendant bad a lien on tbe automobile in bis possession under C. S., 2435. For this reason, Johnson v. Yates, 183 N. C., 24, 110 S. E., 630, is not applicable to tbe instant case.

There was no error in tbe trial of this action. Tbe judgment is affirmed.

No error.