Andrews v. National Oil Co.

206 N.C. 900

• Court: Supreme Court of North Carolina
• Decided: February 28, 1934
• Status: Published

Opinion

Per Ctjbiam.

This case was formerly before the Court on a demurrer to the complaint, 204 N. C., 268. The demurrer was overruled and it was held that the complaint states a good cause of action. The case was subsequently tried and judgment was awarded the plaintiff. The defendant now contends that it was entitled to a nonsuit on the ground that there was a variance between the allegations in the complaint and the evidence offered at the trial. We are of opinion that the evidence is sufficient to sustain the allegations and that the motion for nonsuit was properly denied.

The issues submitted to- the jury sufficiently presented the merits of the controversy' and in declining those tendered by the defendant the court made no error.

The defendant requested an instruction that there was no evidence of the plaintiff’s loss prior to 1 March, 1932, or that the evidence to this effect was conjectural, but an inspection of the testimony reveals evidence which was properly left to the determination of the jury. We find

No error.