Redd v. Mecklenburg Nurseries, Inc. , 241 N.C. 385 ( 1955 )

85 S.E.2d 311 (1955) 241 N.C. 385

Warren J. REDD
v.
MECKLENBURG NURSERIES, Inc.

No. 522.

Supreme Court of North Carolina.

January 14, 1955.

Orr & Osborne, by Frank W. Orr, Charlotte, for defendant appellant.

B. Irvin Boyle, Robert D. Potter, Charlotte, for plaintiff, appellee.

HIGGINS, Justice.

On the issues submitted to the jury, the evidence was in conflict and, therefore, presented a jury question. Pascal v. Burke Transit Co., 229 N.C. 435, 50 S.E.2d 534; Powell v. Lloyd, 234 N.C. 481, 67 S.E.2d 664. The motion for nonsuit at the close of all the evidence was properly overruled. For the same reason, the formal exceptions to the refusal to set aside the verdict and to the signing of the judgment were also properly overruled. The other assignments of error relate to the admissibility of evidence and to the charge of the court.

The witness W. C. Daniels, president of the defendant, on direct examination was asked this question: "Well state whether or not, Mr. Daniels, you considered the check for $300.00 to Mr. W. J. Redd as full payment for his work on the Weyland Homes job." Plaintiff's objection was sustained. If permitted to answer, the witness would have said, "I did." Refusal of the court to permit the question and answer constitute the defendant's Assignments of Error Nos. 2 and 3.

It was stipulated by the parties that if the jury answered the first issue, "Yes," that is, that the parties had a contract for 25 per cent as claimed by the plaintiff, the court should render judgment for $2,775. It was immaterial, therefore, whether Mr. Daniels considered $300 in full payment for plaintiff's work. According to the stipulation, the plaintiff was entitled to recover $2,775 if the jury found he had the contract claimed, otherwise he could recover nothing. Assignments of Error Nos. 2 and 3 cannot be sustained.

The defendant's witness, Harold Daniels, was asked this question: "Do you know the rule of the company with reference to salesmen making bids on jobs put out on bids by architect's plans?" Answer: "Yes, sir." "What is the rule of the company?" The objection to the question was sustained. The record does not contain the answer witness would have made to the question had he been permitted to answer. The further question was asked: "Does the rule apply to all of the salesmen?" Objection to the question was sustained, but the witness' answer appears to have been, "Yes, sir." Whether excluded or not, the record does not disclose. Then the following appears as the further testimony of the witness: "The contract arrangement with Mr. Redd and the Mecklenburg Nurseries was the same as my contract with the company. On straight shrubbery sales, retail prices, they were 331/3 per cent. On combination jobs, 27 per cent. On straight lawn jobs they were 20 per cent. And on two instances Mr. Redd was paid 10 per cent for supervising on the Weyland Homes job (the one in question) and the Oak Crest project." There is nothing in the record to indicate the statement was made in the absence of the jury. However, the defendant, in its brief, treats the statement as having been excluded. We are bound by the record. However, even though the evidence had been excluded, the exclusion would not be reversible error because the same evidence was brought out from the same witness on cross-examination, so that the defendant had the full benefit of it. Error in the exclusion of testimony, therefore, does not appear.

Two exceptive assignments of error are made to the charge: The first lifts out of context that part of the charge as follows: "Now, by the greater weight of the evidence the law simply means that by evidence that has a greater weight upon your minds than the evidence of the defendant." Immediately preceding, the court had charged fully and correctly upon the burden of proof, and immediately after charging as above, further charged: "If the evidence of the plaintiff and the defendant have equal weight in your minds, then your decision would have to be in the negative, or for the defendant, since the burden of proof is on the plaintiff." It does not appear that the jury was, or could have been misled, or could have misunderstood the charge. If the defendant desired a more complete definition of greater weight of the evidence, it should have made the request by appropriate prayer. Wilson v. Inter-Ocean Casualty Co., 210 N.C. 585, 188 S.E. 102. The charge as given seems to be in substantial accord with Hodges v. Southern Ry. Co., 122 N.C. 992, 29 S.E. 939; Cincinnati Butchers' Supply Co. v. Conoly, 204 N.C. 677, 169 S.E. 415; Arnold v. State Bank & Trust Co., 218 N.C. 433, 11 S.E.2d 307.

The defendant assigns as error four paragraphs of the court's charge relating to the second issue: "Did the plaintiff solicit and procure the contract between defendant and Marsh Realty Company?" In view of the stipulation, it does not appear necessary to decide whether the exception is broadside or whether the charge contains a correct statement of the law. Under the terms of the stipulation, the second issue is immaterial and need not have been submitted. It may be treated as surplusage. The stipulation contains the following: "It is further stipulated and agreed that if the jury answer the first issue in favor of the plaintiff, then the plaintiff would be entitled to a judgment in the sum of $2,775.00, with interest and costs, but if the jury answer the issue in favor of the defendant, then the plaintiff shall take nothing of the defendant and the plaintiff will be taxed with the costs."

Under the stipulation, the case was decided by the first issue which the jury found for the plaintiff upon competent evidence and under a charge free from prejudicial error. After the jury answered the first issue in favor of the plaintiff, it was the duty of the court, under the stipulation, to render judgment for the plaintiff.

No error.