Pullen v. . Green , 75 N.C. 215 ( 1876 )

The construction of a contract is a matter of law. But if the contract is verbal, as it was here, and the terms are uncertain and disputed, they may be submitted to the jury as a matter of fact. Festerman v. Parker,32 N.C. 474.

An issue was directed whether the contract was by the year or by the month, and the jury found that it was by the month. The case signed by counsel states that the jury found that the contract was by the year, and not by the month. The record proper must control, because that imports absolute verity. Counsel, therefore, must look to it that no such incongruity in matters material shall appear between the record and the statement of the case.

The allegation of the plaintiff, therefore, is that the contract was an entire year, but the proof and fact is that it was by the month. Having been discharged for good cause in the third month of his services, of course the plaintiff, in no form of action and before no tribunal, can recover more than the balance due for the time he actually served. That balance is found by the jury to be $14.06.

Even had the contract been an entire one for the year, as the plaintiff alleges, as the jury found upon the second issue that the defendant was justified in discharging the plaintiff, he (218) could not recover in any form of action upon either a general or special assumpsit. White v. Brown, 47 N.C. 403; Winstead v.Reid, 44 N.C. 76. Nor can he recover upon a quantum meruit, when a special contract is proved and it appears that he has refused to perform his part of the agreement.

In our case a special contract is found, which contract continued in force until the plaintiff himself put an end to it by his misconduct. He therefore can recover only upon that contract, and only the balance due up to its termination by his own act. Lane v. Phillips, 51 N.C. 455.

But by the contract the plaintiff is entitled to recover only $14.06, as is found by the jury. Of this amount due by contract the Superior Court had no jurisdiction. "Of all civil actions founded on contract, wherein the sum demanded shall not exceed $200, etc., the several justices of the peace shall have exclusive original jurisdiction," etc. Constitution, Art. IV, sec. 33. There is error.

PER CURIAM. Venire de novo.

Cited: Raby v. Cozad, 164 N.C. 290.