McDowell v. Smathers Super Market, Inc.

PHILLIPS, Judge.

The main basis for this appeal is the contention that the salary payments called for were gifts, and the corporate resolution sued on was therefore without consideration and legally unenforceable. From that base and for that reason both defendant appellants contend that the court erred in several respects, including denying their motions for a directed verdict and judgment notwithstanding the verdict, and requiring the defendant corporation to pay interest on the remaining salary payments from the time that they were due. But that is not the position that the defendant appellants took in the trial court. The position that both defendants took, through nearly identical pleadings, was that the corporation intended to make the payments only to the officer’s widow while she was living, and that if, because of ambiguous wording, the resolution failed to so provide, it should be reformed accordingly. Thus, the validity of the resolution, if not conceded, was not questioned in the trial court; the only issue raised about it was the length of time it required the company to pay the salary of Mr. Smathers following his death. Pursuant to these allegations of the defendant appellants, and with their agreement so the record states, the following issues were submitted to the jury:

1. Did the Smathers Super Market, Inc., intend in the March 9, 1978, resolution that the payments subsequently made to Underwood Smathers’ widow be continued at her death until the balance of $50,000 is paid?

2. Did the Smathers Super Market, Inc., through its Board of Directors, provide that the salary payable to the surviving widow, Myrtle Marie Smathers, should cease upon her death, without regard to the language appearing in the written resolution?

The jury answered the first issue yes and the second issue no, thereby finding that the corporation intended to pay the salary of Mr. Smathers for two years, notwithstanding the death of his widow during that period, and that its resolution so provides. Since the parties agreed to these issues, the record, of course, contains no request by the defendant appellants that an issue as to consideration be submitted or that the jury be instructed with respect to it. As has been stated by our Supreme Court many times, the cast of a case on appeal is irretrievably fixed in the trial court; parties cannot try their cases on one theory and appeal them on another. Mills v. Dunk, 263 N.C. 742, 140 S.E. 2d 358 (1965). Since the appellants tried their case on issues that they, themselves, raised and agreed to, they cannot now claim with success that the court erred in permitting them to do so. The judgment entered — for the unpaid salary in the amount of $26,000, together with interest thereon from the time the payments were due —was the only one that could have been properly entered in the setting that the case was tried, and will not be disturbed. The jury established that the company owed $50,000 to start with, the parties agreed that only $24,000 had been paid, and debts arising out of contract, as in this case, bear interest in this state. G.S. 24-5; Security National Bank v. Travelers Insurance Company, 209 N.C. 17, 182 S.E. 702 (1935).

The further alternative contention of the defendant Charles Robert Smathers that the corporate resolution entitles him, as an issue of C. Underwood Smathers, to one-half of the remaining salary owed by the company is likewise without merit. In determining the legal questions raised by the verdict and entering judgment on it, the trial judge ruled that the right to receive the remaining salary payments was vested in Myrtle Marie Smathers at her death and thus passed to plaintiff under the residuary provisions of her will. We believe this ruling was correct. Certainly, the company’s obligation to pay the full $50,000 became absolute at Mr. Smathers’ death; and as we read the resolution it required the company to pay the $50,000 to Mrs. Smathers if she was not “then deceased,”' which she was not. That all the money was not to be disbursed then, but was spread over a two-year period, only delayed her enjoyment of the money and did not affect her right to receive it.

No error.

Judges Webb and Johnson concur.