Delp v. Delp , 53 N.C. App. 72 ( 1981 )

280 S.E.2d 27 (1981)

Clyde Virginia DELP
v.
Hobert R. DELP.

No. 8023DC948.

Court of Appeals of North Carolina.

July 7, 1981.

Vannoy & Reeves by Jimmy D. Reeves, West Jefferson, for plaintiff-appellee.

Franklin Smith, Elkin, for defendant-appellant.

ROBERT M. MARTIN, Judge.

First, we note that the defendant-appellant violated several provisions of Rule 28(b), N.C.Rules App.Proc., in his appellate brief. He violated Appellate Rule 28(b)(1) and (2), by failing to include a statement of questions presented for review and a concise statement of the case in his brief. He also failed to set out the assignments of error and exceptions pertinent to his first argument in violation of Rule 28(b)(3), thereby abandoning that argument. Id. In addition, the appellant failed to set out the assignments of error pertinent to his second argument, in violation of Rule 28(b)(3). Although he set out exception numbers in his second argument, the exceptions to which he referred are unrelated to the argument. Appellant, therefore, has also abandoned the second argument contained in his appellate brief. Id.

This appeal is subject to dismissal due to appellant's failure to comply with the Rules of Appellate Procedure. This Court, however, in its discretion, has decided to suspend the requirements of Rule 28(b) on its own initiative, and to decide this case on its merits pursuant to Rule 2, N.C. Rules App.Proc.

At the close of all the evidence, the defendant tendered the following issue for submission to the jury: "[w]as [sic] the separation agreement and deeds executed on January 23, 1979, voluntarily and freely entered into between the Plaintiff and Defendant?" The trial court refused to submit that issue to the jury and instead submitted the following issue to the jury: "[w]ere the separation agreement and deeds executed on January 23, 1979, entered into by the Defendant under coercion and duress?" The trial court instructed the jury that defendant bore the burden of proof on this issue. Defendant argues that before the jury could reach the issue of duress, it should have first answered the issue of whether a valid contract existed, and plaintiff bore the burden of proving the existence of a valid contract. We disagree.

Defendant argues that the jury should have considered the issue of whether a valid contract existed because conflicting evidence was adduced at trial by both parties with regard to the element of valid consideration for the separation agreement, and plaintiff bore the burden of proving all of the essential elements of a valid contract, including the element of consideration. Defendant's argument fails for two reasons. First, defendant failed to plead failure of consideration in his answer or counterclaim. Failure of consideration is an affirmative defense. N.C.Gen.Stat. § 1A-1, Rule 8(c). Where a defendant does not raise an affirmative defense in his pleadings or in the trial, he cannot present it on appeal. Grissett v. Ward, 10 N.C.App. 685, 179 S.E.2d 867 (1971). Second, defendant admitted the existence of consideration for the separation agreement in his pleadings and at trial. Defendant stated in his counterclaim "[t]hat at the same time, [the time the separation agreement was executed by the parties and the defendant conveyed property to the plaintiff] the Plaintiff conveyed to the Defendant a tract of property...." Defendant testified that he recorded his deed and that he also received personal property under the terms of the separation agreement. Inadequate consideration alone is not sufficient grounds to invalidate a contract. To defeat a contract for failure of consideration, the failure must be entire. Weyerhaeuser Co. v. Light Co., 257 N.C. 717, 127 S.E.2d 539 (1962).

Plaintiff sued defendant for breach of the terms of the separation agreement. Defendant answered and counterclaimed for a rescission of the separation agreement and deeds executed pursuant thereto for the reason that he signed the documents under duress and coercion. Defendant admitted signing the agreement and the deeds and admitted his breach of the terms of the separation agreement. His sole defenses at trial and in his pleadings were duress and coercion. The issues submitted to the jury were sufficient to settle the material controversies arising on the pleadings and at trial and to support the judgment. See Johnson v. Massengill, 280 N.C. 376, 186 S.E.2d 168 (1972). Duress and coercion are affirmative defenses and defendant bore the burden of proving the existence of duress and coercion to the jury's satisfaction. Price v. Conley, 21 N.C.App. 326, 204 S.E.2d 178 (1974). The trial court did not err by refusing to submit the issue proposed by defendant to the jury.

Defendant's second argument concerns the exclusion by the trial court of certain testimony by one of defendant's witnesses. We note that the only testimony excluded by the court was the witness's statement that the plaintiff was "jubilant," "well-pleased," "happy" and "boastful" over the separation agreement and that the witness had commented to plaintiff's daughter that plaintiff was going to take everything the defendant had and "break him." We find no error in the exclusion of this clearly inadmissible testimony. Further, even if the testimony was admissible, any error in excluding it was harmless. The essence of the witness's testimony, i. e., that the plaintiff had stated to her that she would receive the house, furniture and $1,000 per month as alimony after consulting her attorney, was presented to the jury.

No error.

WHICHARD and BECTON, JJ., concur.