ROBERTS COMPANY v. Aladdin Knit Mills, Inc. , 8 N.C. App. 612 ( 1970 )

175 S.E.2d 289 (1970) 8 N.C. App. 612

ROBERTS COMPANY
v.
ALADDIN KNIT MILLS, INC.

No. 7011SC80.

Court of Appeals of North Carolina.

July 15, 1970. Certiorari Denied September 1, 1970.

McDermott & Parks, by George M. McDermott and O. Tracy Parks, III, Sanford, for plaintiff appellant-appellee.

James M. Kimzey, Joyner & Howison, Raleigh, for defendant appellant-appellee.

PARKER, Judge.

Both parties have filed briefs in their capacities both as appellant and as appellee. Rule 28 of the Rules of Practice in the Court of Appeals provides that the appellant's brief "shall contain, properly numbered, the several grounds of exception and assignment of error with reference to the pages of the record, and the authorities relied on classified under each assignment." Neither party as appellant has complied with this rule. This failure has added considerably to our difficulty in attempting to review their contentions, particularly in view of the large number of assignments of error noted in the record on appeal by the defendant as appellant. We have nevertheless undertaken to review both appeals upon the merits.

DEFENDANT'S APPEAL

Defendant-appellant contends there was error in the trial court's discretionary rulings on motion for continuance, motion to set aside the verdict as being against the weight of the evidence, and motion for new trial because of newly discovered evidence. We find these contentions to be without merit. The record reveals that defendant's motion for a continuance was given most careful consideration by Judge McKinnon, who entered an order dated 28 July 1969 making full findings of fact from which the court concluded that "any lack of readiness for trial at this session results from a lack of due diligence on the part of defendant." (The court also found from the facts that no part of this lack of diligence is due to any action on the part of attorney Gavin.) A motion for continuance is addressed to the sound discretion of the trial judge and his ruling thereon is not reviewable in the absence of manifest abuse of discretion. 7 Strong, N.C. Index 2d, Trial, § 3, p. 258. Defendant's motion to set aside the verdict as being against the weight of the evidence was also addressed to the sound discretion of the trial judge, and his ruling in this respect is not reviewable on appeal in the absence of abuse of such discretion. Goldston v. Chambers, 272 N.C. 53, 157 S.E.2d 676. Review of the entire record in this case clearly reveals there was no abuse of discretion on the part of the trial court.

The newly discovered evidence which defendant contends entitled it to a new trial amounted essentially only to evidence in rebuttal to plaintiff's evidence. Evidence "which is merely contradictory of the evidence of the adverse party, is insufficient to invoke the discretionary power of the court to order a new trial for newly discovered evidence." 7 Strong, N.C. Index 2d, Trial, § 49, p. 366.

Defendant-appellant also argues there was error in submission of the issues to the jury, in that so defendant contends, plaintiff had the burden of proving that the machines failed to work properly because of some factor outside of its warranty, and that the issues did not properly reflect this burden. In our opinion the issues submitted to the jury did adequately present the entire case, and any relevance in defendant-appellant's contention that the burden of proof was placed incorrectly on the question as to whether the machines complied with the warranty, was dispelled by the jury's determination that there were no warranties.

Defendant-appellant also contends that the trial judge violated G.S. § 1-180 in taking the verdict of the jury. The jury originally answered issue 8, as to what amount Aladdin was indebted to Roberts, in the form "amount specified in contract." The trial court informed the jury that the verdict should be in some dollar amount, and inquired if they intended the amount set forth in the complaint. All members of the jury confirmed that this was their intention and agreed to the figure of $43,719.65 as was written on the issue sheet by the jury foreman. Under the circumstances, we find there was no expression of opinion by the trial judge in violation of G.S. § 1-180 as is contended by defendant-appellant. The judge did not, by his question, suggest an answer to the jury; he merely elicited from them confirmation of the clear implication of the answer which they had originally given to issue No. 8. There was no error in this respect.

We have carefully examined defendant-appellant's other assignments of error and find them to be without merit.

PLAINTIFF'S APPEAL

Plaintiff-appellant's single contention made in its appeal is that there was error in the form of the judgment which directed that plaintiff is entitled to recover in this action only such portion of the indebtedness as was due at the time the action was filed. Plaintiff's argument in this respect is that the contract was in effect repudiated by defendant, and for that reason judgment should have been rendered for the entire contract price. However, the contract sued upon by the plaintiff was in writing and obligated defendant to pay the purchase price for the machinery only in monthly installments. There was no acceleration clause making the entire contract price due in event defendant should default in paying any monthly installment. "In the absence of such a provision for acceleration, a failure to pay some of the installments entitles the creditor to recover only the amount of the unpaid installments." 17A C.J.S. Contracts § 507, p. 811. The courts will enforce the contract of the parties, but they may not write a new agreement for them.

Upon careful examination of the entire record as it relates to the appeals of both parties, we have found no error.

No error.

CAMPBELL and HEDRICK, JJ., concur.