Swayngim v. Sampson, 252 N.C. 69 (1960)

Feb. 24, 1960 · Supreme Court of North Carolina

252 N.C. 69

J. W. SWAYNGIM v. R. H. SAMPSON.

(Filed 24 February, 1960.)

Appeal by defendant from Thompson, S. J., September 1959 Special Term, of JacksoN.

Action to recover $300.00, balance of contract price for construction of a private road or driveway. Defendant pleads failure of plaintiff to complete the construction in accordance with the contract, an offset of $300.00 expended by defendant for completion of the driveway, and counterclaim for the further sum of $35.00.

Defendant failed to tender an issue on his counterclaim. The jury answered in favor of plaintiff the issue submitted by the court.

From judgment in accordance with the verdict defendant appealed and assigned errors.

T. D. Bryson, Jr., and Marcellus Buchanan for plaintiff.

Hall & Thornburg for defendant.

Pee CuRiam.

The evidence was conflicting. There was an issue of fact for the jury which was resolved by the twelve in plaintiff’s favor. The jury might well have decided the issue differently, but we see no legal ground for disturbing the verdict. All assignments of error relate to the charge of the court. When read contextually, the charge is found to be free of prejudicial error. Weavil v. Trading Post, 245 N.C. 106, 115, 95 S.E. 2d 533; Taylor Co. v. Highway Commission, 250 N.C. 533, 539, 109 S.E. 2d 243.

No error.