Lutz v. . Thompson

In the opinion of this court, the evidence of the defendant was improperly excluded. Not that he could by parol annex to his bond a condition which upon its face it did not bear, or avail himself, in the present state of the pleadings, of a failure in its consideration; but upon the ground that the evidence tended to show that the contract, of which the bond sued on constitutes only a part, is still incomplete; or rather to establish the fact that, instead of a contract, the stipulations between the parties amounted only to a proposed contract, which has never acquired the force of an agreement, and consequently cannot be enforced as a whole, because of the subsequent dissent of the necessary (337) parties.

Taking the testimony to be true, it is plain that the parol agreement made by the plaintiff in July, 1876, and the bond then given by the defendant, were but parts of a general scheme for the settlement of their ancestor's estate, and were never intended or expected by the parties to stand as separate and independent transactions; and it would be evidently unjust to enforce one part of that scheme and leave other parts unfulfilled. See Bell v. Bowers, 4 Coldwell, (Tenn.), 311.

Neither is there any difficulty in the question of jurisdiction over such a defence as that insisted on, because of the action having originated in the justice's court. Whenever such a court has jurisdiction of the principal matter of an action, as on a bond for instance, it must necessarily have jurisdiction of every incidental question necessary to its proper determination. Garrett v. Shaw, 25 N.C. 395. And though it cannot affirmatively administer an equity, it may so far recognize it as to admit it to be set up as a defence. McAdoo v. Callum, 86 N.C. 419.

Error. Venire de novo.

Cited: Dougherty v. Sprinkle, 88 N.C. 301; Hurst v. Everett, 91 N.C. 405;Kornegay v. Everett, 99 N.C. 34; Berry v. Henderson, 102 N.C. 527; Guano Co. v. Tillery, 110 N.C. 31; Vance v. Vance,118 N.C. 868; McCall v. Zachary, 131 N.C. 468; Walker v. Miller,139 N.C. 457; Levin v. Gladstein, Barbee v. Greenberg, 144 N.C. 432;Fidelity Co. v. Grocery Co., 147 N.C. 513; Wildes v. Nelson, 154 N.C. 595;Cheese Co. v. Pipkin, 155 N.C. 400; Sewing Machine Co. v. Burger,181 N.C. 247; Grocery Co. v. Banks, 185 N.C. 151; Fertilizer Co. v. Bowen,204 N.C. 377; Allen v. Ins. Co., 213 N.C. 589; Realty Co. v. Logan,216 N.C. 28.