A. J. Higgins Lumber & Export Co. v. Elizabeth City Shipyard Co.

107 S.E. 449, 181 N.C. 442, 1921 N.C. LEXIS 99

Opinion

Allen, J.

1. Both parties having introduced evidence on tbe trial, tbe determination of tbe right to open and conclude tbe argument was discretionary, and is not reviewable. See Rules 3 and 6 of Superior Court, approved by Supreme Court, 164 N. C., 562-3.

2. It was not necessary to introduce the itemized statements of accounts, but they could not have been prejudicial to tbe defendant, because they showed nothing except the quantity of lumber bought by the defendant, the price agreed on, and the total, all of which was admitted by the defendant.

3. This admission also made it impossible to grant the motion for judgment of nonsuit, as did also the tender in the answer of judgment in favor of the plaintiff for $1,225.

4. Ordinarily the defendant would have been entitled to a separate issue on its counterclaim, but it appears from the record that the defendant was not asking for an affirmative judgment, but was seeking to reduce the plaintiff’s demand by the matters alleged in the answer, and this contention of the defendant could well be presented under the issue submitted to the jury, and we must presume this was done, under fair and proper instructions, as the charge is not sent to this Court.

Indeed, it appears the counterclaim was allowed in part, as the plaintiff’s demand, which was admitted, amounts to $2,420.72, and the verdict is for $1,936.57, which cannot be reconciled except upon the theory that the difference between the two amounts, $484.15, is the damages awarded the defendant on the counterclaim.

We find no error committed on the trial.

No error.