Price v. Conley , 21 N.C. App. 326 ( 1974 )

204 S.E.2d 178 (1974) 21 N.C. App. 326

Charles B. PRICE
v.
Irvin CONLEY.

No. 7427DC155.

Court of Appeals of North Carolina.

April 17, 1974.

Horn, West, Horn & Wray by C. A. Horn, Shelby, for plaintiff appellant.

Yelton & Lamb, P.A., by Robert W. Yelton, Shelby, for defendant appellee.

BRITT, Judge.

The sole issue submitted to the jury was: "Did the plaintiff, by his action, condone the action of the defendant, and thereby waive his right to assert the breach on the part of the defendant?" The jury answered the issue in the negative.

In his answer, defendant pled waiver or estoppel on the part of plaintiff. G. S. § 1A-1, Rule 8(c) makes waiver an affirmative defense; on an affirmative defense, the burden of proof lies with the defendant. Therefore, it would appear at first glance that the allowance of the motion for judgment notwithstanding the verdict in this case violated the rule laid down in Cutts v. Casey, 278 N.C. 390, 180 S.E.2d 297 (1971). A further examination, however, shows that this case lies within the distinction set forth in Wyche v. Alexander, 15 N.C.App. 130, 189 S.E.2d 608 (1972). Justice Sharp in Cutts v. Casey, supra, 278 N.C. at 421, 180 S.E.2d 314, says: "The established policy of this State — declared in both the constitution and statutes — is that the credibility of testimony is for the jury, not the court, and that a genuine issue of fact must be tried by a jury unless this right is waived. [Citation.] Whether there is a ``genuine issue of fact' is, of course, a preliminary question for the judge."

Here, as in Wyche, the pleadings, evidence, and stipulations show that there was no "genuine issue of fact" for jury consideration. The only evidence in this case supplementing the admissions and stipulations was plaintiff's own testimony; therefore, if defendant's burden was met, it was met for him by plaintiff. In such instance, it is permissible to grant a Rule 50 motion in favor of a party with the burden of proof. Charles F. Curry and Company v. Hedrick, 378 S.W.2d 522 (Mo.1964); Coulthard v. Keenan, 256 Iowa 890, 129 N.W.2d 597 (1964); and Smith v. Burleson, 9 N.C.App. 611, 177 S.E.2d 451 (1970). Thus, at least procedurally, the granting of the motion was correct and leaves us to determine if the granting was substantively correct.

A previous action between the parties, involving the same subject matter, was before this court in the Fall of 1971, the opinion being reported in Price v. Conley, 12 N.C.App. 636, 184 S.E.2d 405 (1971). The present action was instituted on 23 January 1973 and, this being another case, we do not decide if the former opinion established "the law of the case." It suffices to say that we think Judge Parker accurately stated the law applicable to this case when he wrote at page 640, 184 S.E. 2d at page 408:

"A provision in a lease for termination at the option of the lessor upon breach of the lessee's obligation to pay rental is not self-executing. Such a provision may be waived by the landlord, for whose benefit it was inserted, and he may elect to treat the lease as continuing in effect. Moreover, the purpose of such a provision is not to provide a forfeiture with which to surprise an unwary tenant, but to secure the landlord in his right to receive the rental called for in the lease. ``Provisions for the forfeiture of a lease for nonpayment of rent, whether contractual or statutory, are considered in equity as securing the rent, and not as providing for the forfeiture of the lease where the tenant acts in good faith and pays promptly on demand.' 49 Am Jur 2d, Landlord and Tenant, § 1034, p 1002.

"In the present case the plaintiff landlord, by quietly accepting monthly payments of rental in the amount of $35.00 for many months after August 1969, recognized the lease as continuing in effect and waived, not his right to collect monthly rental in the increased amount of $40.00 as called for in the lease, but his right to terminate the lease by reason of his lessee's past defaults. This waiver continued until the lessor made demand upon the lessee to pay the amount by which he was in arrears and until the lessee, after being given a reasonable opportunity to do so, should fail to make such payment."

Plaintiff argues that, at the trial of this action, he showed that he did not have knowledge of the lease provision for an increase in rental payments until after he had accepted some ten payments; therefore, his acceptance did not amount to "quietly" accepting erroneous payments with the result that he recognized the lease as continuing in effect and waived his right to terminate the lease.

We feel that regardless of this showing, knowledge was imputed to plaintiff. Plaintiff's testimony that he obtained a copy of the lease from the courthouse showed that the lease was recorded, and that provided plaintiff with constructive notice. See 6 Strong, N.C. Index 2d, Registration, § 3, at 649 (1968). Therefore, we hold that the trial court was substantively correct in granting defendant's motion.

We have examined plaintiff's other assignment regarding the refusal of the trial court to allow the attorney who prepared the lease to testify that he did so at the request of defendant. We do not think that testimony would be relevant to the question of waiver under the facts in this case. This assignment is likewise overruled.

For the reasons stated, the judgment of the trial court is

Affirmed.

HEDRICK and CARSON, JJ., concur.