Barnhill, J.
Tbe court below gave a peremptory instruction in favor of tbe plaintiff. Exception thereto poses this question for decision: Does all tbe competent testimony in this cause, considered in tbe light most favorable to defendants, tend to show that defendants are indebted to plaintiff in tbe sum of $3,675 ? Tbe court below, by its instruction, answered in tbe affirmative. We agree.
Tbe defendants listed their property for sale witb plaintiff. He advertised tbe same and contacted prospective purchasers. Defendants from
time to time went to bis office to inquire as to tbe prospects of sale. Finally, tbe Council got in touch with him because it was known, or tbe Council was informed, that be bad tbe property for sale. He reported to defendants be bad a prospective purchaser. After conferring with him as to price, personal property to be excluded, and other matters, tbey signed an informal option prepared by plaintiff, more favorable to them than their original listing. Thereafter, on tbe same day, tbey executed a formal option, prepared by tbe attorney of tbe Council, in which tbey agreed to sell to Francis J. Heazel or bis assigns tbe
locus in quo.
at tbe price of $100,000. At tbe same time tbey signed a contract to pay plaintiff, upon tbe consummation of tbe sale, tbe commissions be now claims. Tbe sale was consummated under tbe terms of tbe original option as modified by tbe contract of 27 September and tbe extension agreement of 9 November 1951.
There is only one inference that may be drawn from this evidence. Tbe plaintiff has fully performed bis part of tbe contract, and defendants must pay him for bis services tbe compensation tbey agreed to pay. This was tbe substance of tbe charge of tbe court below to which defendants except. It meets our approval. Hence this exceptive assignment of error is overruled.
Tbe evidence offered by plaintiff pertaining to bis effort to sell defendants’ farm after it was listed with him up to tbe time be was approached by tbe Council was admissible in corroboration of plaintiff’s testimony that defendants’ farm was listed with him for sale and for tbe purpose of showing tbe relationship that existed between him and defendants at tbe time tbey signed tbe option of 25 August 1951. He testified be approached them on 25 August as their agent to obtain an option that would in effect “book tbe fish” that was “nibbling at tbe bait.” The testimony to which defendants’ exceptive assignments of error are directed tends to show that be was then acting as agent of defendants. It follows that defendants’ exceptions thereto are without merit.
Tbe record is devoid of any evidence tending to show that plaintiff, in procuring an option and effecting a sale of tbe property of defendants, was acting in a dual capacity or that be was acting as agent of tbe op-tionee in procuring tbe option of 25 August. Therefore, tbe court committed no error in declining to submit tbe tendered issue or in its charge in respect thereto.
Satterwhite v. Hicks,
44 N.C. 105;
Brown’s Heirs v. Patton’s Heirs,
35 N.C. 446;
Lee v. Williams,
112 N.C. 510.
Only such issues as are raised by tbe pleadings and supported by Competent evidence should be submitted to a jury.
Morrisett v. Cotton Mills,
151 N.C. 31, 65 S.E. 514;
Braswell v. Johnston,
108 N.C. 150;
Griffin v. Insurance Co.,
225 N.C. 684, 36 S.E. 2d 225;
Stokes v. Edwards,
230 N.C. 306, 52 S.E. 2d 797.
Those who had signed options to sell their property, at the instance of the Council, held a meeting to consider reducing the prices they were demanding so as to bring the total within the amount Oerlikon was willing to pay. . Witnesses offered to testify that plaintiff at this meeting addressed the optionors and made the statement, “he wasn’t getting a dime out of it,” and other statements to like effect. This testimony was properly excluded. It does not appear just when this meeting was held. Certainly it was after the defendants executed the agreement to pay plaintiff a commission for making sale of their property, and the alleged statements were insufficient to constitute a rescission or abrogation of that contract.
Patton v. Lumber Co.,
179 N.C. 103;
May v. Getty,
140 N.C. 310;
Manufacturing Co. v. Lefkowitz,
204 N.C. 449, 168 S.E. 517;
Lewis v. Gay,
151 N.C. 168, 65 S.E. 907;
Adams v. Battle,
125 N.C. 152;
Palmer v. Lowder,
167 N.C. 331, 83 S.E. 464;
Bell v. Brown,
227 N.C. 319.
Defendants rely heavily on what they term their Exceptions 11 and 12, directed to the exclusion of testimony of the
feme
defendant. No such exceptions were entered of record. Even so, they contend that exceptions are implied under the terms of Ch. 150, S.L. 1949.
The
feme
defendant testified that plaintiff went to the home of defendants 27 September and told them the prospective purchaser would not buy from the various optionors unless the purchase price of the several tracts desired was reduced. They replied: . . we were a community citizen people and would be glad to help the community and that we would reduce ours $3,000, (and he told us there would be absolutely no commission when we did that . . .)” Plaintiff moved to strike the testimony in parentheses. The motion was allowed. Defendants contend that under Ch. 150, S.L. 1949, an exception by them to this ruling is implied.
Mrs. Shope was then asked whether she signed another agreement reducing the price $3,000 on 9 November. She answered: “I did, but I did because I was told a story; now that is exactly why; and the paper was never offered me to read.” Plaintiff moved to strike. “Motion allowed. That is not in response to the question.”
Here again the defendants contend an exception on their part to the ruling of the court is implied.
The contention of the defendants that in law they entered Exceptions II and 12, although at the time they remained silent, is without merit.
Ch. 150, S.L. 1949, is short and to the point. It provides:
“Sec. 1. In any trial or hearing no exception need be taken to any ruling upon an objection to the admission of evidence. Such objection shall be deemed to imply an exception by the party against whom the ruling was made.”
It simply provides that when a litigant objects to the admission of evidence and bis objection is overruled, it shall be conclusively presumed that he duly excepted to the ruling. It makes no provision for the protection of the adversary party who sits by and fails to except when an objection to evidence is sustained. The Legislature wisely omitted any such provision, for a trial judge should be advised, at the time, that his ruling is challenged. The objection gives him notice on the one hand, hut silence on the other does not. Instead, it indicates the ruling is accepted as being in accord with rules governing the admission of testimony.
In any event, the ruling of the court was correct.
Feme
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Barnhill, J.
Tbe court below gave a peremptory instruction in favor of tbe plaintiff. Exception thereto poses this question for decision: Does all tbe competent testimony in this cause, considered in tbe light most favorable to defendants, tend to show that defendants are indebted to plaintiff in tbe sum of $3,675 ? Tbe court below, by its instruction, answered in tbe affirmative. We agree.
Tbe defendants listed their property for sale witb plaintiff. He advertised tbe same and contacted prospective purchasers. Defendants from
time to time went to bis office to inquire as to tbe prospects of sale. Finally, tbe Council got in touch with him because it was known, or tbe Council was informed, that be bad tbe property for sale. He reported to defendants be bad a prospective purchaser. After conferring with him as to price, personal property to be excluded, and other matters, tbey signed an informal option prepared by plaintiff, more favorable to them than their original listing. Thereafter, on tbe same day, tbey executed a formal option, prepared by tbe attorney of tbe Council, in which tbey agreed to sell to Francis J. Heazel or bis assigns tbe
locus in quo.
at tbe price of $100,000. At tbe same time tbey signed a contract to pay plaintiff, upon tbe consummation of tbe sale, tbe commissions be now claims. Tbe sale was consummated under tbe terms of tbe original option as modified by tbe contract of 27 September and tbe extension agreement of 9 November 1951.
There is only one inference that may be drawn from this evidence. Tbe plaintiff has fully performed bis part of tbe contract, and defendants must pay him for bis services tbe compensation tbey agreed to pay. This was tbe substance of tbe charge of tbe court below to which defendants except. It meets our approval. Hence this exceptive assignment of error is overruled.
Tbe evidence offered by plaintiff pertaining to bis effort to sell defendants’ farm after it was listed with him up to tbe time be was approached by tbe Council was admissible in corroboration of plaintiff’s testimony that defendants’ farm was listed with him for sale and for tbe purpose of showing tbe relationship that existed between him and defendants at tbe time tbey signed tbe option of 25 August 1951. He testified be approached them on 25 August as their agent to obtain an option that would in effect “book tbe fish” that was “nibbling at tbe bait.” The testimony to which defendants’ exceptive assignments of error are directed tends to show that be was then acting as agent of defendants. It follows that defendants’ exceptions thereto are without merit.
Tbe record is devoid of any evidence tending to show that plaintiff, in procuring an option and effecting a sale of tbe property of defendants, was acting in a dual capacity or that be was acting as agent of tbe op-tionee in procuring tbe option of 25 August. Therefore, tbe court committed no error in declining to submit tbe tendered issue or in its charge in respect thereto.
Satterwhite v. Hicks,
44 N.C. 105;
Brown’s Heirs v. Patton’s Heirs,
35 N.C. 446;
Lee v. Williams,
112 N.C. 510.
Only such issues as are raised by tbe pleadings and supported by Competent evidence should be submitted to a jury.
Morrisett v. Cotton Mills,
151 N.C. 31, 65 S.E. 514;
Braswell v. Johnston,
108 N.C. 150;
Griffin v. Insurance Co.,
225 N.C. 684, 36 S.E. 2d 225;
Stokes v. Edwards,
230 N.C. 306, 52 S.E. 2d 797.
Those who had signed options to sell their property, at the instance of the Council, held a meeting to consider reducing the prices they were demanding so as to bring the total within the amount Oerlikon was willing to pay. . Witnesses offered to testify that plaintiff at this meeting addressed the optionors and made the statement, “he wasn’t getting a dime out of it,” and other statements to like effect. This testimony was properly excluded. It does not appear just when this meeting was held. Certainly it was after the defendants executed the agreement to pay plaintiff a commission for making sale of their property, and the alleged statements were insufficient to constitute a rescission or abrogation of that contract.
Patton v. Lumber Co.,
179 N.C. 103;
May v. Getty,
140 N.C. 310;
Manufacturing Co. v. Lefkowitz,
204 N.C. 449, 168 S.E. 517;
Lewis v. Gay,
151 N.C. 168, 65 S.E. 907;
Adams v. Battle,
125 N.C. 152;
Palmer v. Lowder,
167 N.C. 331, 83 S.E. 464;
Bell v. Brown,
227 N.C. 319.
Defendants rely heavily on what they term their Exceptions 11 and 12, directed to the exclusion of testimony of the
feme
defendant. No such exceptions were entered of record. Even so, they contend that exceptions are implied under the terms of Ch. 150, S.L. 1949.
The
feme
defendant testified that plaintiff went to the home of defendants 27 September and told them the prospective purchaser would not buy from the various optionors unless the purchase price of the several tracts desired was reduced. They replied: . . we were a community citizen people and would be glad to help the community and that we would reduce ours $3,000, (and he told us there would be absolutely no commission when we did that . . .)” Plaintiff moved to strike the testimony in parentheses. The motion was allowed. Defendants contend that under Ch. 150, S.L. 1949, an exception by them to this ruling is implied.
Mrs. Shope was then asked whether she signed another agreement reducing the price $3,000 on 9 November. She answered: “I did, but I did because I was told a story; now that is exactly why; and the paper was never offered me to read.” Plaintiff moved to strike. “Motion allowed. That is not in response to the question.”
Here again the defendants contend an exception on their part to the ruling of the court is implied.
The contention of the defendants that in law they entered Exceptions II and 12, although at the time they remained silent, is without merit.
Ch. 150, S.L. 1949, is short and to the point. It provides:
“Sec. 1. In any trial or hearing no exception need be taken to any ruling upon an objection to the admission of evidence. Such objection shall be deemed to imply an exception by the party against whom the ruling was made.”
It simply provides that when a litigant objects to the admission of evidence and bis objection is overruled, it shall be conclusively presumed that he duly excepted to the ruling. It makes no provision for the protection of the adversary party who sits by and fails to except when an objection to evidence is sustained. The Legislature wisely omitted any such provision, for a trial judge should be advised, at the time, that his ruling is challenged. The objection gives him notice on the one hand, hut silence on the other does not. Instead, it indicates the ruling is accepted as being in accord with rules governing the admission of testimony.
In any event, the ruling of the court was correct.
Feme
defendant testified that after plaintiff stated that no commissions would be charged if defendants reduced their asking price by $3,000, he went to town and returned to their home that night with a contract which she and her husband executed. This is the contract of 27 September reducing the price and in which the inducement or consideration for the reduction is specifically stated as follows :
“Undersigned has been informed by said Francis J. Heazel that said option and options on other land in the same neighborhood have been obtained by him for the purpose of providing site for the construction and operation of a manufacturing plant and that said option given by the undersigned may not be exercised unless the said purchase price stated therein is reduced.
“Therefore, as an inducement to said Francis J. Heazel, Attorney, and also to Asheville Industrial Promotion Council, Inc., to continue thereafter to sell the said land of the undersigned to a corporation that shall use said land as a part of a site for a manufacturing plant and in consideration of said Francis J. Heazel, Attorney, agreeing that said option granted to him shall not be exercised for the benefit of or assigned or transferred to anyone other than a corporation that shall so use said land, it is agreed by undersigned that the purchase price for the land described in the attached agreement is reduced to Ninety Seven Thousand ($97,000) Dollars . .
The testimony stricken was at variance with this provision of a written contract thereafter executed and was properly excluded.
Pierce v. Bierman,
202 N.C. 275.
The question involved in the purported Exception 12 was improper. It incorporated an erroneous conclusion of law. The contract of 9 November was not “an agreement reducing the price.” The price was reduced by the contract of 27 September. The contract of 9 November was merely an agreement extending the option of 25 August, as modified by the contract of 27 September,
an
additional sixty days.
In this connection we may note that the assumption the agreement of 9 November reduced the defendants’ asking price by $3,000 no doubt led
to tbe efforts on tbe part of defendants to prove statements made by plaintiff prior to tbe execution thereof, which produced many of tbe exceptions contained in tbe record.
"We have examined tbe exceptive assignments of error not herein specifically noted, and we fail to find in them sufficient merit to require discussion.
In tbe trial below we find
No error.