Jackson v. City of Gastonia , 247 N.C. 88 ( 1957 )

100 S.E.2d 241 (1957) 247 N.C. 88

J. G. JACKSON, Janie L. Loftin, F. L. Jackson, R. A. Jackson, R. M. Jackson and E. E. Jackson,
v.
The CITY OF GASTONIA.

No. 177.

Supreme Court of North Carolina.

October 30, 1957.

J. Mack Holland, Jr., and James B. Garland, Gastonia, for appellant.

L. B. Hollowell and Hugh W. Johnston, Gastonia, for appellees.

JOHNSON, Justice.

The only question presented for decision is: Did the court below err in allowing interest from 22 October, 1952, the date of the filing of the complaint? We think so.

In tort actions for conversion, interest ordinarily is allowable in the discretion of the jury. Stephens v. Koonce, 103 N.C. 266, 9 S.E. 315; White v. Riddle, 198 N.C. 511, 152 S.E. 501; Royal Ins. Co., Ltd., of Liverpool, Eng. v. Atlantic Coast Railroad Co., 198 N.C. 518, 152 S.E. 503. But this principle does not apply here for the reason that the facts were stipulated in respect to the amount of the plaintiffs' recovery. The stipulation provides that "the reasonable value and the quantum meruit of the lines involved" is $9,522.46. (Italics added.) The term "quantum meruit" as so used in the stipulation means what the plaintiffs reasonably deserve. 73 C.J.S., page 1269. See Black's Law Dictionary, Second Edition, p. 975. It thus appears that the language of the stipulation fixed the amount of the recovery. The judge was without discretion to superadd an allowance for interest as additional damages or compensation. The stipulation, being in the nature of a formal judicial admission of facts made for the purpose of dispensing with proofs in respect to the question of damages or compensation, remained conclusive and binding upon the parties on remand of the case to the Superior Court as directed by the former decision of the Supreme Court. See 50 Am.Jur., Stipulations, Section 13; Annotation: 100 A.L.R. 775, 776; 20 Am. Jur., Evidence, Section 5570.

In this view of the case we have no need to apply the principle that ordinarily a waiver of jury trial is inoperative at a new or subsequent trial. Benbow v. Robbins, 72 N.C. 422; Isler v. Koonce, 83 N.C. 55; Hickory v. Southern Railroad Co., 138 N.C. 311, 50 S.E. 683.

However, if the case had been decided correctly in favor of the plaintiffs when it was nonsuited at the 10 December, 1956, Term of Superior Court, the judgment would have drawn interest from the first day of the term. G.S. § 24-5; Stephens v. Koonce, supra; In re Chisholm's Will, 176 N.C. 211, 96 S.E. 1031; Yancey v. North Carolina State Highway & Public Works Commission, 222 N.C. 106, 22 S.E.2d 256. This being so, in so far as the plaintiffs' right to recover interest is concerned, the judgment as entered below after remand will be treated as having been entered at the 10 December, 1956 Term of Court, and the plaintiffs' recovery will bear interest from the first day of that term. Kneeland v. American Loan & T. Co., 138 U.S. 509, 11 S.Ct. 426, 34 L.Ed. 1052. Subject to this modification, the judgment below is affirmed.

The decisions relied on by the defendant are factually distinguishable.

Modified and affirmed.