Curtis v. White Cadilllac-Olds, Inc.

248 N.C. 717

• Court: Supreme Court of North Carolina
• Decided: September 17, 1958
• Status: Published

Opinion

Higgins, J.

The plaintiff alleged and offered evidence tending to show (1) a contract, (2) a breach by failure to perform, (3) the right of the plaintiff to rescind. Hutchins v. Davis, 230 N.C. 67, 52 S.E. 2d 210. In such event the plaintiff is entitled to recover his consideration or its value. Brannon v. Wood, 239 N.C. 112, 79 S.E. 2d 256. Under his pleadings he can only recover the consideration paid or its value, not having alleged other damages. Price v. Goodman, 226 N.C. 223, 37 S.E. 2d 592.

In passing on the allegations and evidence on the question of non-suit, we do not consider defendant’s side of the case for reasons fully stated by Justice Walker in the case of Carter v. Carter, 182 N.C. 186, 108 S.E. 2d 765: “We may add that when the allegations in the case are threshed out it may finally appear that the plaintiff’s allegations are not sustained, and that she is rightly not entitled to any return, either legal or equitable. But as there was a peremptory dismissal of the case, we are not dealing with the actual facts, but with the plaintiff’s allegations in her complaint.”

In this case the plaintiff’s allegations state a cause of action which the evidence offered tends to support. The evidence excluded was pertinent to the inquiry. The judgment of nonsuit entered in the court below is

Reversed.

PARKER, J., took no part in the consideration or decision of this case.