Fairmont School, Inc. v. Bevis

210 N.C. 50

Opinion

Connor, J.

The defendant in her answer admitted the contract sued on by the plaintiff, as alleged in the complaint. No issue was raised by the pleadings with respect to the contract. For that reason, it was error for the court to submit to the jury, over the objection of the plaintiff, the first issue, and to charge the jury that the defendant contended that they should answer the issue “No.”

In Dickens v. Perkins, 134 N. C., 220, 46 S. E., 490, it is said: “An issue of fact as defined by the Code arises upon the pleadings when a material fact is alleged or maintained by one party and controverted by the other. Code, sec. 391.” See C. S., 582.

For the error in submitting to the jury the first issue, the plaintiff is entitled to a new trial. The defendant is entitled to have the jury determine the facts on which she relies for her defense to plaintiff’s recovery in this action. See Horner’s Military School v. Rogers, 167 N. C., 270, 83 S. E., 345.

New trial.