Bernard v. Johnston, 78 N.C. 25 (1878)

Jan. 1878 · Supreme Court of North Carolina

78 N.C. 25

GERMAINE BERNARD Administrator d. b. n. v. JOHN B. JOHNSTON.

Practice — Appeal.

"Where on the trial in the Court below, there were no objections to any part of the evidence and no exceptions to any part of His Honor’s instructions, this Court on appeal can only affirm the judgment.

Civil ActioN, tried at Eall Term, 1877, of Pitt Superior Court, before Cannon, J.

This action was commenced in a Justice’s Court for the recovery of $181.89,alleged to be due by account to Francis A. Bernard, the intestate of plaintiff, for services rendered to defendant as clerk in a store.

The plaintiff’s witnesses testified among other things that F. A. Bernard commenced clerking for defendant in 1870; was with him as much as four months of that year, all of the year 1871, and three or four months of the year 1872, and that his services were worth $30 per month. The witness who testified as to the value of the services rendered, also stated that he clerked for the defendant at $25 per month, immediately preceding the time that Bernard was employed; that he did not quit the service of defendant because the pay was too small; that he was now Deputy Superior Court Clerk at $40 per month, and that Bernard was a better clerk than he, witness, was.

The defendant introduced no testimony, but insisted before the jury that according to the account stated by plaintiff, they should render a verdict for the defendant, because the plaintiff admitted in his account that he owed the defendant a book account of $508 and had not adduced testimony sufficient to show that his services were worth the amount claimed, ($30 per month) and that the defendant claimed and was entitled to a verdict for the difference between the $508 and the value of Bernard’s services to.be-fixed by them. The plaintiff in reply argued that he had fully made out his case and had shown that the amount due from defendant to him was greater than the sum admitted to be due the-defendant. Under the instructions of His Honor the jury rendered a verdict for the defendant.

Judgment. Appeal by plaintiff.

Messrs. Gilliam §• Gatling, for plaintiff.

Messrs. Jarvis ¿-Sugg, for defendant. •

Faircloth, J.

The defendant’s account was admitted by the plaintiff and the only issue was the value of the services-rendered by plaintiff’s intestate. The jury ascertained this and balanced the accounts and gave a verdict for the difference in favor of the defendant.

Neither party objected to the admission of any part of the evidence nor to any part of His Honor’s instructions to the jury, and we do not see any error in his instructions. The value of the services and the weight of evidence were matters alone for the jury to determine, and we find nothing to do except to affirm the judgment. The grounds assigned for a new trial were in the discretion of the Court below and we do not consider them.

No error. Let judgment be entered here for the defendant.

Per Curiam. Judgment affirmed-