Seawell, J.
No. 381.
In this case, as above noted, plaintiff brought suit in the Superior Court of Iredell County to recover of the defendants $2,212.12, which he claimed to be due him for material furnished on one of the jobs included in the improvements made upon defendants’ property. Under the alleged contract between plaintiff and defendants, it will be noted that defendants denied that they had made any such contract, and set up that Lyles was an independent contractor who had agreed to make the improvements at a set price, including the furnishing of all material, and that the debt, if any, was his.
The evidence in regard to the contract is fully set out above, and will not be repeated here.
Upon the evidence, the defendants conceive themselves entitled to recognition by the court and consideration by the jury of the statute of frauds as it relates to a promise to answer for the debt, default or miscarriage of another, which they contend the contract to be, according to plaintiff’s evidence, if indeed there was any contract at all. In this respect they urge as prejudicial error that the judge did not distinguish the evidence applying to this phase of the case and apply the law thereto.
No doubt the evidence we find in the record would require serious consideration from that point of view, both in the trial court and here, and would have demanded an application of the law to the facts in appropriate instructions to the jury if the question had been properly raised.
If the force and effect of the statute were to vitiate all contracts required by it to be in writing, but which are found to be in parol, and to render them unenforceable,
virtute legis,
simply, as is sometimes the case with contracts made void because in contravention of public policy, the law itself, without entreaty by the interested party, might stay the hand of the court, where the contract, either by virtue of its lack of ambiguity or of a determination to that effect by a jury, falls within the statute. But the purpose of the statute is to prevent fraud upon individuals charged with participation in transactions coming within its purview, and not upon the public at large. The question, therefore, must be raised and the statute invoked by the party who seeks to defend under it, and not
suo sponte
by the court. If, then, it is the office of the person charged with a promise to raise the question of its invalidity under the statute, the court, if it is to charge the jury concerning the statute, must have timely notice during the trial of his intention to rely upon it.
Henry v. Hilliard,
155 N. C., 372, 71 S. E., 439; 25 R. C. L., 692, n. 9. Otherwise his conduct may have the effect of waiving the statute, that being his privilege.
Henry v. Hilliard, supra; McGowen v. West,
7 Mo., 569, 38 Am. Dec., 468;
Moore Lumber Corp. v. Walker,
110 Va., 775, 67 S. E., 374; see, also,
Draper v. Wilson,
143 Wis., 510, 128 N.
W.,
66.
There was nothing said about the statute here until defendants came to note their exceptions to the charge, which, under our liberal practice, is permitted to be done long after the trial in making up the case on appeal. It is then, however, too late to apprise the court of an intention to rely upon the statute of frauds, and, indeed, an attempt to do so in this manner is ineffectual.
Cozart v. Land Co.,
113 N. C., 294, 18 S. E., 337;
Ogburn v. Booker,
197 N. C., 687, 150 S. E., 330;
Render v. Lillard,
61 Okla., 206, 160 Pac., 705;
Moore Lumber Corp. v. Walker, supra.
In
Henry v. Hilliard, supra,
the court summarized the methods by which one charged with such a promise may invoke the statute. “The party to be charged may simply deny the contract alleged, or deny it and set up a different contract, and avail himself of the statute, without pleading it, by objecting to the evidence; or he may admit the contract and plead the statute; and in either case the contract cannot be enforced.” This has been approved in
Balentine v. Gill,
218 N. C., 496, 500, 11 S. E. (2d), 456, 458. If the list is not, indeed, comprehensive in its application to all possible situations, it seems clear, at least, that the procedure adopted by defendants is insufficient for the purpose. They did not plead the statute, and, while denying the contract, they did not follow this up by objection to the parol evidence offered to prove it.
Where the defendant relies upon a denial of the contract and objection to the evidence by which it is sought to be proved, he merely brings the plaintiff to an
impasse,
because by the rules of evidence he is not permitted to show by parol a contract which the, law requires to be in writing,
Holler v. Richards,
102 N. C., 545, 9 S. E., 460;
Browning v. Berry,
107 N. C., 231, 235, 12 S. E., 195, 196;
Jordan v. Furnace Co.,
126 N. C., 143, 35 S. E., 247;
Luton v. Badham,
127 N. C., 96, 37 S. E., 143 — unless, indeed, that contract has been written and lost or destroyed, or is otherwise rendered unavailable,
Gwynn v. Selzer,
48 N. C., 382;
Chair Co. v. Crawford,
193 N. C., 531, 137 S. E., 577. The rule that a denial of the contract will raise the question of the statute of frauds only where the complaint shows the contract to be in writing, while very general, does not seem to obtain here.
Jordan v. Furnace Co., supra.
But there are errors brought up by defendants’ exceptions which cannot be overlooked. We find no evidence that would bind the
feme
defendant by the promise or contract upon which the plaintiff sues. The defendants not only objected to the submission of the issue as to the liability of Mrs. Steele, but further strengthened their position by exceptions to omissions in the charge of any proper application of the law to the evidence respecting her liability if there should be any evidence to support it.
As to Grace B. Steele, the motion for judgment as of nonsuit should have been allowed. As to Thomas H. Steele, the objectionable issue presents an inseparable proposition, and defendants’ objection to its submission is good. The defendant is entitled to an issue which will determine his liability without the involvement of any other person as procurer where there is no evidence to support it.
Coltrane v. Laughlin,
157 N. C., 282, 72 S. E., 961;
Clinard v. Kernersville,
217 N. C., 686, 688, 9 S. E. (2d), 381, 382. For this error, he is entitled to a new trial.
No. 380.
There are exceptions applicable to this case alone, and one which goes to its root — based upon refusal of the motion to dismiss it for want of jurisdiction in the justice’s court to entertain it. This refers to the inability of plaintiff to split up his cause of action for materials furnished under one indivisible contract so that, at his convenience, the items might be divided and suits prosecuted and judgments obtained on them separately.
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Seawell, J.
No. 381.
In this case, as above noted, plaintiff brought suit in the Superior Court of Iredell County to recover of the defendants $2,212.12, which he claimed to be due him for material furnished on one of the jobs included in the improvements made upon defendants’ property. Under the alleged contract between plaintiff and defendants, it will be noted that defendants denied that they had made any such contract, and set up that Lyles was an independent contractor who had agreed to make the improvements at a set price, including the furnishing of all material, and that the debt, if any, was his.
The evidence in regard to the contract is fully set out above, and will not be repeated here.
Upon the evidence, the defendants conceive themselves entitled to recognition by the court and consideration by the jury of the statute of frauds as it relates to a promise to answer for the debt, default or miscarriage of another, which they contend the contract to be, according to plaintiff’s evidence, if indeed there was any contract at all. In this respect they urge as prejudicial error that the judge did not distinguish the evidence applying to this phase of the case and apply the law thereto.
No doubt the evidence we find in the record would require serious consideration from that point of view, both in the trial court and here, and would have demanded an application of the law to the facts in appropriate instructions to the jury if the question had been properly raised.
If the force and effect of the statute were to vitiate all contracts required by it to be in writing, but which are found to be in parol, and to render them unenforceable,
virtute legis,
simply, as is sometimes the case with contracts made void because in contravention of public policy, the law itself, without entreaty by the interested party, might stay the hand of the court, where the contract, either by virtue of its lack of ambiguity or of a determination to that effect by a jury, falls within the statute. But the purpose of the statute is to prevent fraud upon individuals charged with participation in transactions coming within its purview, and not upon the public at large. The question, therefore, must be raised and the statute invoked by the party who seeks to defend under it, and not
suo sponte
by the court. If, then, it is the office of the person charged with a promise to raise the question of its invalidity under the statute, the court, if it is to charge the jury concerning the statute, must have timely notice during the trial of his intention to rely upon it.
Henry v. Hilliard,
155 N. C., 372, 71 S. E., 439; 25 R. C. L., 692, n. 9. Otherwise his conduct may have the effect of waiving the statute, that being his privilege.
Henry v. Hilliard, supra; McGowen v. West,
7 Mo., 569, 38 Am. Dec., 468;
Moore Lumber Corp. v. Walker,
110 Va., 775, 67 S. E., 374; see, also,
Draper v. Wilson,
143 Wis., 510, 128 N.
W.,
66.
There was nothing said about the statute here until defendants came to note their exceptions to the charge, which, under our liberal practice, is permitted to be done long after the trial in making up the case on appeal. It is then, however, too late to apprise the court of an intention to rely upon the statute of frauds, and, indeed, an attempt to do so in this manner is ineffectual.
Cozart v. Land Co.,
113 N. C., 294, 18 S. E., 337;
Ogburn v. Booker,
197 N. C., 687, 150 S. E., 330;
Render v. Lillard,
61 Okla., 206, 160 Pac., 705;
Moore Lumber Corp. v. Walker, supra.
In
Henry v. Hilliard, supra,
the court summarized the methods by which one charged with such a promise may invoke the statute. “The party to be charged may simply deny the contract alleged, or deny it and set up a different contract, and avail himself of the statute, without pleading it, by objecting to the evidence; or he may admit the contract and plead the statute; and in either case the contract cannot be enforced.” This has been approved in
Balentine v. Gill,
218 N. C., 496, 500, 11 S. E. (2d), 456, 458. If the list is not, indeed, comprehensive in its application to all possible situations, it seems clear, at least, that the procedure adopted by defendants is insufficient for the purpose. They did not plead the statute, and, while denying the contract, they did not follow this up by objection to the parol evidence offered to prove it.
Where the defendant relies upon a denial of the contract and objection to the evidence by which it is sought to be proved, he merely brings the plaintiff to an
impasse,
because by the rules of evidence he is not permitted to show by parol a contract which the, law requires to be in writing,
Holler v. Richards,
102 N. C., 545, 9 S. E., 460;
Browning v. Berry,
107 N. C., 231, 235, 12 S. E., 195, 196;
Jordan v. Furnace Co.,
126 N. C., 143, 35 S. E., 247;
Luton v. Badham,
127 N. C., 96, 37 S. E., 143 — unless, indeed, that contract has been written and lost or destroyed, or is otherwise rendered unavailable,
Gwynn v. Selzer,
48 N. C., 382;
Chair Co. v. Crawford,
193 N. C., 531, 137 S. E., 577. The rule that a denial of the contract will raise the question of the statute of frauds only where the complaint shows the contract to be in writing, while very general, does not seem to obtain here.
Jordan v. Furnace Co., supra.
But there are errors brought up by defendants’ exceptions which cannot be overlooked. We find no evidence that would bind the
feme
defendant by the promise or contract upon which the plaintiff sues. The defendants not only objected to the submission of the issue as to the liability of Mrs. Steele, but further strengthened their position by exceptions to omissions in the charge of any proper application of the law to the evidence respecting her liability if there should be any evidence to support it.
As to Grace B. Steele, the motion for judgment as of nonsuit should have been allowed. As to Thomas H. Steele, the objectionable issue presents an inseparable proposition, and defendants’ objection to its submission is good. The defendant is entitled to an issue which will determine his liability without the involvement of any other person as procurer where there is no evidence to support it.
Coltrane v. Laughlin,
157 N. C., 282, 72 S. E., 961;
Clinard v. Kernersville,
217 N. C., 686, 688, 9 S. E. (2d), 381, 382. For this error, he is entitled to a new trial.
No. 380.
There are exceptions applicable to this case alone, and one which goes to its root — based upon refusal of the motion to dismiss it for want of jurisdiction in the justice’s court to entertain it. This refers to the inability of plaintiff to split up his cause of action for materials furnished under one indivisible contract so that, at his convenience, the items might be divided and suits prosecuted and judgments obtained on them separately. Whatever may be the rights of a defendant who has suffered such an action to go to judgment before a justice of the peace, without appeal, and to what extent a judgment so obtained may affect a suit subsequently brought on the same contract as
res adjudicata, Jarrett v. Self,
90 N. C., 478, we need not discuss upon this appeal. Defendants furnished sufficient record evidence to show the bringing of another action in the Superior Court for materials furnished on the same contract, and the fact is admitted in the brief. In fact, both
cases were tried together. The plaintiff has no more right to split up his cause of action and try one part in the justice’s court and one part in the Superior Court than he has to try it piecemeal in the magistrate’s court. The motion to dismiss the action brought before the justice of the peace for lack of jurisdiction should have been allowed.
Boyle v. Robbins,
71 N. C., 130;
Jarrell v. Self, supra; McPhail v. Johnson,
109 N. C., 571, 13 S. E., 799. It is unnecessary to consider other exceptions in the record.
In No. 381,
As to Grace B. Steele, Reversed.
As to Thomas H. Steele, New Trial.
In No. 380, on defendants’ motion to dismiss for want of jurisdiction,
Reversed.