Duguid v. . Rasberry

110 S.E. 840, 183 N.C. 134, 1922 N.C. LEXIS 220

• Court: Supreme Court of North Carolina
• Decided: March 8, 1922
• Status: Published

Opinion

Walker, J.

There would seem to be nothing more than a question of fact in this case. The burden was upon the defendants to show that the amount was not only a reasonable one for services rendered by the auction company, but that they had in fact paid it, and the evidence upon these two questions was of a most unsatisfactory character. On the bare facts of the case the sum charged in the account against the plaintiff and credited to the defendants, that is, $4,316, would appear to be far beyond what such a service, if rendered, was reasonably worth, and the evidence as to the fact of the payment by the defendants to the auction company was not such as should have been offered by one occupying a position somewhat similar to that of a fiduciary liable to account for money received and disbursed by him. There was no receipt of the auction company introduced in evidence by the defendants. The witness merely stated that the money had been paid, but without showing the receipt for the. same, or calling as witnesses the parties to whom it was paid. The jury either discredited this evidence as to the payment, or decided that the defendants had not _produced satisfactory evidence to show what was a reasonable amount to be paid for the service rendered, nor that what was j>aid, if anything, was reasonable. The contract did not fix the amount, and, in the absence of a more definite agreement between the parties as to the same, the defendants were entitled only to a credit for what the services of the auctioneer were reasonably worth under all the facts and circumstances of the case. 13 Corpus Juris., 791, sec. 1017; Nordylee v. Kehlor, 78 A. S. Rep., 600. This question was fairly and fully submitted to the jury by the court in every aspect of it, and the charge was exceedingly fair to the defendants, if not more reasonable to them than they should have expected. It was a question of fact, and the jury, upon the evidence, have decided it against the contention of the appellants.

The court properly overruled the motion for a nonsuit. There were no prayers for special instructions. If the defendants had desired other instructions than those given, which, though general, covered the case, they should have asked for more specific instructions in order to present any view which they thought should be more particularly stated, Simmons v. Davenport, 140 N. C., 407, and cases cited in Anno. Ed. But we consider that the jury understood the real merits of the case, and reached the proper conclusion upon the issue and evidence.

If the verdict was against the weight of the evidence, the defendants’ remedy was an application to the court to set it aside, but the decision upon such a matter is not reviewable here. But, if it could be revised by us, we are inclined strongly to the opinion that, upon the evidence, the conclusion of the jury was a correct one.

No error.