Laughter v. North Carolina State Highway & Public Works Commission

'WiNBORNE, J.

This is the pivotal question on this appeal: In tbe light of tbe pleadings, and of tbe orders shown in tbe record, and upon tbe facts found by tbe Judge, as set forth in tbe order of 3 June, 1951, entered pursuant to pre-trial conference, did tbe court correctly rule that only one issue as therein stated should be submitted to tbe jury? This Court bolds in tbe affirmative.

Petitioner in her complaint seeks compensation in large amount for tbe taking of right of way, and for constructing a certain public highway across her property. In answer to this, respondent pleads release and accord and satisfaction in bar of petitioner’s right to recover any further compensation. In this connection, release and accord and satisfaction, if established, are, in accordance with decisions of this Court, good pleas in bar. See among other eases: Jones v. Beaman, 117 N.C. 259, 23 S.E. 248; McAuley v. Sloan, 173 N.C. 80, 91 S.E. 701; Bank v. Evans, 191 N.C. 535, 132 S.E. 563. See also McIntosh’s N. C. P. & P. in Civil Cases, Sec. 523, at page 564.

Such pleas, if established, would defeat the right of petitioner to maintain this proceeding, and to recover any further compensation. And respondent had the right to stand to, and abide by its pleas. But when respondent, without obtaining a ruling on its pleas in bar, elected to appear before the Clerk of Superior Court, upon notice, and to participate in, and to agree to the selection of commissioners to appraise the compensation to which petitioner is entitled, it waived the benefit of the pleas. From such act it is reasonable to assume after all that respondent had changed its mind, — -not an unreasonable assumption in the light of the amount paid, and offered to be paid for the release and accord and satisfaction pleaded, on the one hand, and the amount of compensation to which the jury later found petitioner to be entitled, on the other. Indeed, it has been said, in reference to a plea in abatement, that it is waived, even after joinder of issue thereon, where defendant, without obtaining a ruling on the plea, appears to the merits of the action. 1 C.J.S. 272, Abatement and Revival, Sec. 211.

Careful consideration has been given to all points urged for error, and debated in brief of counsel for respondent, in respect to the findings of fact, and rulings of the Judge below as set forth in the pre-trial order of 3 June, 1951, and prejudicial error is not made to appear.

And, too, all assignments of error based upon exceptions taken in the course of the trial in Superior Court, as well as those based upon exceptions to the charge, have been duly considered, and in them prejudicial error is not revealed.

The case appears to have been fairly presented to the jury, and the jury has spoken. So be it!

No error.