Grissett v. Ward , 10 N.C. App. 685 ( 1971 )

179 S.E.2d 867 (1971) 10 N.C. App. 685

S. Dewey GRISSETT
v.
Ruby Stephens WARD and Carl Stephens.

No. 7113DC197.

Court of Appeals of North Carolina.

March 31, 1971.

Frink & Foy by Grover A. Gore, Southport, for plaintiff appellee.

Sankey W. Robinson, Whiteville, and E. J. Prevatte, Southport, for defendants appellants.

CAMPBELL, Judge.

The defendants present two questions for decision. (1) Was there sufficient evidence to withstand a motion for a directed verdict in favor of the defendants? (2) Did the trial judge commit prejudicial error in the instructions to the jury?

In determining the sufficiency of the evidence to withstand a motion for a directed verdict, all of the evidence which supports the plaintiff's claim must be taken as true and considered in the light most favorable to him, giving him the benefit of every reasonable inference which, legitimately, may be drawn therefrom, and with contradictions, conflicts and inconsistencies being resolved in plaintiff's favor. Musgrave v. Mutual Savings & Loan Assoc., 8 N.C.App. 385, 174 S.E.2d 820 (1970). Viewed in this light, we are of the opinion that the evidence was sufficient to go to the jury, and the motions for a directed verdict were properly denied. Plaintiff testified to the existence of an oral agreement between the parties, to the delivery of his crop of sweet potatoes to the defendants, and to the partial payment by the defendants. He also testified as to the price which he was to receive for the potatoes, that he had been promised payment for that portion of the crop for which he had not been paid, but that such payment was never made. This evidence was sufficient to allow the jury to find that an agreement existed; that plaintiff had performed his part of the agreement; and that the defendants had failed to comply with their part of the agreement. The reasonableness or unreasonableness of the agreement itself is not before us. All of the parties to the alleged agreement were sui juris; such an agreement would not be illegal or against public policy.

"Ordinarily, when parties are on equal footing, competent to contract, enter into an agreement on a lawful subject, and do so fairly and honorably, the law does not permit inquiry as to whether the contract was good or bad, whether it was wise or foolish. * * *" Roberson v. Williams, 240 N.C. 696, 83 S.E.2d 811 (1954); Welborn Plumbing & Heating Co. v. Randolph County Board of Education, 268 N.C. 85, 150 S.E.2d 65 (1966).

A question for the triers of facts was presented and the jury found for the plaintiff. There was no error in the trial court by this procedure.

Defendants also contend, in their brief, that the plaintiff has not complied with G.S. § 25-2-201, the statute of frauds provision relating to sales under the Uniform Commercial Code. The defendants, however, did not raise this defense in their pleadings or in the trial below. The defendants' answer was filed subsequent to the effective date of the North Carolina Rules of Civil Procedure. Rule 8(c) sets forth certain affirmative defenses which must be pleaded. The statute of frauds is one of these affirmative defenses. Defendants, not having raised this defense in their pleadings or in the trial below, cannot now present it before this Court. See 1 McIntosh, N.C.Practice 2d, Section 970.65 (Supp.1970) and Cohoon v. Swain, 216 N. C. 317, 5 S.E.2d 1 (1939).

The second question raised by the defendants pertains to the instructions to the jury given by the trial judge. We have reviewed these instructions in their entirety, and we think that when so considered, the trial judge presented to the jury the legal precepts involved and fairly and adequately instructed the jury.

The trial presented a factual determination by the triers of fact. We find no prejudicial error in the trial of this case.

Affirmed.

BRITT and HEDRICK, JJ., concur.