Doggett Lumber Co. v. Perry

196 S.E. 831, 213 N.C. 533, 1938 N.C. LEXIS 130

Opinion

Stacy, C. J.

Tbe plaintiff declared on one contract for a stated amount. Tbe defendants tendered judgment on another and different liability for a lesser amount. Tbe tender was not accepted under tbe statute, C. S., 896, wbicb put it at an end, and it was again refused in open court at tbe close of tbe evidence. Tbe plaintiff elected to stand upon tbe cause of action set out in its complaint and lost. Tbe modification wbicb it now seeks was declined in tbe trial court and was not advanced on tbe original bearing bere. 3 Am. Jur., 350. Its later motion in tbe Superior Court was resisted on tbe ground of rights subsequently intervening. By tbe same token that plaintiff’s first election is binding, as originally held, it would seem that its second ought to prevent another volte face in tbe matter. -The case of Penn v. King, 202 N. C., 174, 162 S. E., 376, is distinguishable.

If plaintiff’s rights have seemingly become entangled in tbe net of form, due to its elections, we may say that its remedy is an action to recover for materials furnished tbe contractor and used in tbe construction of tbe building. C. S., 2437; Briggs & Sons, Inc., v. Allen, 207 N. C., 10, 175 S. E., 838; Foundry Co. v. Aluminum Co., 172 N. C., 704, 90 S. E., 923. Tbe complaint in tbe present action covers only one cause of action.

Petition dismissed.

DeviN, J., dissents. Seawell, J., took no part in tbe consideration or decision of this case.