Cheek v. Southern Railway Co. ( 1938 )

Seawell, J.

1. We do not think the present state of the record has placed the Court in a position to rule on the question of res adjudicata as applied to the release claimed to be effected by the involuntary nonsuit on the evidence in the first case.

If we assume that a substantial identity exists between the evidence on the first trial and that in the case at bar on this question, we are met with the difficulty that the judgment of involuntary nonsuit in the first trial is general in its character and does not specify any particular phase of the case to which it applied. That case was subject to nonsuit if the plaintiff failed to establish her contention of fraud or mistake by evidence sufficient to avoid the release, and equally so upon her failure to produce evidence sufficient to go to the jury on the question of negligence, injury, and damage. There was a further suggestion that the complaint in the first case was defective in not properly setting out facts as to the dependents of deceased and that the evidence in that respect was not addressed to an adequate declaration in the complaint.

While ordinarily a judgment under review may be sustained on any ground legally justifying it, even though the judgment itself may be predicated on a different ground, it is questionable, at least, whether this rule can be applied to a judgment in a former suit pleaded as res adjudi-cata, where the burden is on the pleader to bring itself within its terms. We do not pass upon this matter but refer to it in order that it may be understood that it has not escaped the attention of the Court.

2. On the trial, the question of fraud and misrepresentation was submitted under an appropriate issue, thus segregating that phase of the ease and its pertinent evidence. The third issue related to mistake alone and was framed to present the question of mutual mistake.

On this issue, in the above excerpts from the charge the judge instructed the jury that the release could be avoided “by mistake of either party” — that is, by mistake of either the party seeking to avoid it or the party seeking to enforce it. This statement is so broad, and so untenable, as to suggest inadvertence.

A contract is the product of two or more consenting minds making a commitment about the same thing, binding on the parties at law or in equity. It is true that where there has been no meeting of the minds on the essentials of the treaty, no contract results. Lumber Co. v. Boushall, 168 N. C., 501, 84 S. E., 800. But if we can conceive of such a situation — or, indeed, of a case of “innocent misrepresentation”- — that cannot be resolvable into mutual mistake (Great Northern R. Co. v. Fowler, 136 F., 118, 69 C. C. A., 106; Seymour v. Chicago & N. W. Ry. Co., 181 Ia., 218, 164 N. W., 352, 357; Williston on Contracts, Rev. Ed., section 1551, and notes), still we can find no authority for the rescission of a contract for mistake at the instance of a party who has made no mistake.

If we confine the allusions in the instruction to the plaintiff seeking relief from his own mistake, it is still contrary to established precedent. This Court has not adopted the doctrine that an unilateral mistake — or mistake alone of the party seeking to avoid the contract — unaccompanied by fraud, imposition, undue influence, or like circumstances of oppression, is sufficient to avoid a contract. We do not undertake to catalogue the conditions which will give rise to equity jurisdiction. We simply say that the mere mistake of one party alone is not sufficient to avoid the contract. Bean v. R. R., 107 N. C., 731, 747, 12 S. E., 600. To have that effect, the mistake must be mutual. Ebbs v. Trust Co., 199 N. C., 242, 153 S. E., 858; Hinsdale v. Phillips, 199 N. C., 563, 572, 155 S. E., 238; West v. R. R., 151 N. C., 231, 236, 65 S. E., 579; White v. R. R., 110 N. C., 456, 461, 15 S. E., 197.

As we have seen, the issue submitted to the jury raises only the question of mutual mistake. The instructions given are not pertinent to such an inquiry, and as statements of law on the subject given the jury to consider they cannot be approved.

Other exceptions need not be considered.

For the errors noted, the defendants are granted a new trial.

New trial.