EAST COAST OIL COMPANY v. Fair , 3 N.C. App. 175 ( 1968 )

164 S.E.2d 482 (1968) 3 N.C. App. 175

EAST COAST OIL COMPANY
v.
James H. FAIR and wife Esther Fair.

No. 6828SC275.

Court of Appeals of North Carolina.

December 11, 1968.

Landon Roberts, Asheville, for plaintiff appellee.

Cecil C. Jackson, Jr., Asheville, for defendant appellants.

MALLARD, Chief Judge.

Defendant Esther Fair did not appeal. No judgment was entered against her. Plaintiff's case against her, if it has one, is not submitted on this record.

When this case was called for trial in this Court, defendant demurred ore tenus. This demurrer has no merit and is denied.

Defendant James H. Fair in his answer set up a counterclaim in which he asserted that he is entitled to recover a total of $75,900 for unpaid commissions due under the terms of the lease, a copy of which he attaches, and on which plaintiff's cause of action is founded. Upon motion of plaintiff the counterclaim was stricken. We are of the opinion and so hold that it was proper for the defendant to assert a counterclaim for commissions due by plaintiff to defendant under the terms of the lease upon which plaintiff's cause of action arose. G.S. § 1-137; 1 McIntosh, N.C. Practice 2d, § 1240; General Tire & Rubber Co. v. Distributors, Inc., 251 N.C. 406, 111 S.E.2d 614; Burns v. Gulf Oil Corporation, 246 N.C. 266, 98 S.E.2d 339.

It was error for the court to allow plaintiff's motion to strike the defendant James H. Fair's "Further Answer, Defense and Counterclaim." Defendant James H. Fair was entitled to allege in this cause a breach of the lease agreement sued on by plaintiff. We are not concerned here with whether the defendant will recover in view of the factual situation and the provisions of paragraph VI of the lease agreement. But we are concerned here with defendant's right to assert a counterclaim against the plaintiff based on nonpayment of commissions alleged to be due under the lease. Clearly, the counterclaim set out here is permissible in that it is an alleged existing cause of action connected with plaintiff's action. Standard Amusement Co. v. Tarkington, 247 N.C. 444, 101 S.E.2d 398; Auto Finance Co. of North Carolina v. Simmons, 247 N.C. 724, 102 S.E.2d 119; Garrett v. Love, 89 N.C. 205.

Defendant James H. Fair also contends that the court committed error in striking portions of his prayer for relief. It is not reversible error to strike parts of a prayer for relief even when a party is entitled to the relief set out in the prayer for relief. However, a denial of the relief to which a party is entitled is error, regardless of whether or not it is set out in the prayer for relief. It is well-settled law in North Carolina that a party is entitled to the relief which the allegations in the pleadings will justify. Bruton v. Bland, 260 N.C. 429, 132 S.E.2d 910. It is not necessary that there be a prayer for relief or that the prayer for relief contain a correct statement of the relief to which the party is entitled. 2 McIntosh, N.C. Practice 2d, §§ 999(1), 1694.

Defendant assigns as error the failure of the court to submit more than one issue and contends that the issue submitted was ambiguous. G.S. § 1-200 requires:

"Issues shall be framed in concise and direct terms, and prolixity and confusion must be avoided by not having too many issues. The issues arising upon the pleadings, material to be tried, must be made up by the attorneys appearing in the action, or by the judge presiding, and reduced to writing, before or during the trial."

Ordinarily, it is within the sound discretion of the trial judge as to what issues shall be submitted to the jury and the form thereof. The statute, however, requires the judge to submit such issues as are necessary to settle the material controversies arising on the pleadings. Griffin v. United Services Life Insurance Co., 225 N.C. 684, 36 S.E.2d 225.

In Denmark v. Atlantic & N. C. R. R. Co., 107 N.C. 185, 12 S.E. 54, the Supreme Court said:

"1. Only issues of fact raised by the pleadings must be submitted to the jury.

2. The verdict, whether in response to one or many issues, must establish facts sufficient to enable the court to proceed to judgment.

3. Of the issues raised by the pleadings, the judge who tries the case may in his discretion submit one or many, provided that neither of the parties to the action is denied the opportunity to present to the jury any view of the law arising out of the evidence, through the medium of pertinent instructions on some issue passed upon."

In Baker v. Malan Construction Corp., 255 N.C. 302, 121 S.E.2d 731, the Court said:

"``The submission of issues is not a mere matter within the discretion of the court, but it is now a mandatory requirement of the law, and a failure to observe this requirement will entitle the party who, has not in some way lost the right to have the error of the court corrected.' * * *

* * * ``If the parties consent to the issues submitted, or do not object at the time or ask for different or additional issues, the objection cannot be made later.' McIntosh, opus cited, § 510. If defendant had not tendered issues or otherwise objected to trial on the issue submitted, it could not do so on this appeal."

In the instant case the judge submitted the following issue:

"Did the defendant James H. Fair receive from the plaintiff the sum of $7,750.00, which belonged to the plaintiff, as alleged in the Complaint?"

Defendant excepted to the submission of this issue and failed to tender issues. However, there is error in the judgment of the court below in that the verdict rendered by the jury will not support the judgment entered by the court. As noted above, one of the requirements laid down by the Court in Denmark v. Atlantic & N. C. R. R. Co., supra, is that the verdict "must establish facts sufficient to enable the court to proceed to judgment." In the present case the verdict rendered by the jury in response to the single issue that was submitted to them merely establishes that the defendant has received $7,750 "which belonged" to the plaintiff. It does not even establish that the defendant is indebted to the plaintiff. The words in the issue "as alleged in the complaint" are not sufficient to explain or justify the judgment entered. "It is thoroughly settled in law that in all cases tried by a jury the judgment must be supported by and conform to the verdict in all substantial particulars." Russell v. Hamlett, 261 N.C. 603, 135 S.E.2d 547. See also Page Supply Co. v. Horton, 220 N.C. 373, 17 S.E.2d 493. In the present case the judgment of the court goes far beyond those matters answered by the jury in its verdict. The judgment of the court that the plaintiff is entitled to recover $7,750 of the defendant, reduced by $3,750 for a total recovery of $4,000, is inconsistent with the verdict of the jury to the effect that the defendant had received $7,750 from the plaintiff. The jury did not pass on the issue of whether the money was wrongfully detained by the defendant or whether in fact the defendant was indebted to the plaintiff for money had and received or whether defendant was entitled to rent in the amount allotted by the court in the judgment.

In the absence of issues answered by the jury, or admissions in the record sufficient to reasonably justify the judgment rendered, this case is remanded for a new trial.

For the reasons stated, there must be a

New trial.

CAMPBELL and MORRIS, JJ., concur.