Grissett v. Ward

Court of Appeals of North Carolina

Grissett v. Ward

179 S.E.2d 867, 10 N.C. App. 685, 1971 N.C. App. LEXIS 1697

CourtCourt of Appeals of North Carolina

DecidedMarch 31, 1971

Docket7113DC197

StatusPublished

Cited by9 cases

This text of 179 S.E.2d 867 (Grissett v. Ward) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Grissett v. Ward, 179 S.E.2d 867, 10 N.C. App. 685, 1971 N.C. App. LEXIS 1697 (N.C. Ct. App. 1971).

Pincite

Opinion

CAMPBELL, Judge.

The defendants present two questions for decision. (1) Was there sufficient evidence to withstand a motion for a directed verdict in favor of the defendants? (2) Did the trial judge commit prejudicial error in the instructions to the jury?

In determining the sufficiency of the evidence to withstand a motion for a directed verdict, all of the evidence which supports the plaintiff’s claim must be taken as true and considered in the light most favorable to him, giving him the benefit of every reasonable inference which, legitimately, may be drawn therefrom, and with contradictions, conflicts and inconsistencies being resolved in plaintiff’s favor. Musgrave v. Savings & Loan Assoc., 8 N.C. App. 385, 174 S.E. 2d 820 (1970). Viewed in this light, we are of the opinion that the evidence was1 sufficient to go to the jury, and the motions for a directed verdict were properly denied. Plaintiff testified to the existence of an oral agreement between the parties, to the delivery of his crop of sweet potatoes to the defendants, and to the partial payment by the *687 defendants. He also testified as to the price which he was to receive for the potatoes, that he had been promised payment for that portion of the crop for which he had not been paid, but that such payment was never made. This evidence was sufficient to allow the jury to find that an agreement existed; that plaintiff had performed his part of the agreement; and that the defendants had failed to comply with their part of the agreement. The reasonableness or unreasonableness of the agreement itself is not before us. All of the parties to the alleged agreement were sui juris; such an agreement would not be illegal or against public policy.

“Ordinarily, when parties are on equal footing, competent to contract, enter into an agreement on a lawful subject, and do so fairly and honorably, the law does not permit inquiry as to whether the contract was good or bad, whether it was wise or foolish. . . .” Roberson v. Williams, 240 N.C. 696, 88 S.E. 2d 811 (1954) ; Heating Co. v. Board of Education, 268 N.C. 85, 150 S.E. 2d 65 (1966).

A question for the triers of facts was presented and the jury found for the plaintiff. There was no error in the trial court by this procedure.

Defendants also contend, in their brief, that the plaintiff has not complied with G.S. 25-2-201, the statute of frauds provision relating to sales under the Uniform Commercial Code. The defendants, however, did not raise this defense in their pleadings or in the trial below. The defendant’s answer was filed subsequent to the effective date of the North Carolina Rules of Civil Procedure. Rule 8(c) sets forth certain affirmative defenses which must be pleaded. The statute of frauds is one of these affirmative defenses. Defendants, not having raised this defense in their pleadings or in the trial below, cannot now present it before this Court. See 1 McIntosh, N. C. Practice 2d, Section 970.65 (Supp. 1970) and Cohoon v. Swain, 216 N.C. 317, 5 S.E. 2d 1 (1939).

The second question raised by the defendants pertains to the instructions to the jury given by the trial judge. We have reviewed these instructions in their entirety, and we think that when so considered, the trial judge presented to the jury the legal precepts involved and fairly and adequately instructed the jury.

*688 The trial presented a factual determination by the triers of fact. We find no prejudicial error in the trial of this case.

Affirmed.

Judges Britt and Hedrick concur.

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CAMPBELL, Judge.

The defendants present two questions for decision. (1) Was there sufficient evidence to withstand a motion for a directed verdict in favor of the defendants? (2) Did the trial judge commit prejudicial error in the instructions to the jury?

In determining the sufficiency of the evidence to withstand a motion for a directed verdict, all of the evidence which supports the plaintiff’s claim must be taken as true and considered in the light most favorable to him, giving him the benefit of every reasonable inference which, legitimately, may be drawn therefrom, and with contradictions, conflicts and inconsistencies being resolved in plaintiff’s favor. Musgrave v. Savings & Loan Assoc., 8 N.C. App. 385, 174 S.E. 2d 820 (1970). Viewed in this light, we are of the opinion that the evidence was1 sufficient to go to the jury, and the motions for a directed verdict were properly denied. Plaintiff testified to the existence of an oral agreement between the parties, to the delivery of his crop of sweet potatoes to the defendants, and to the partial payment by the *687 defendants. He also testified as to the price which he was to receive for the potatoes, that he had been promised payment for that portion of the crop for which he had not been paid, but that such payment was never made. This evidence was sufficient to allow the jury to find that an agreement existed; that plaintiff had performed his part of the agreement; and that the defendants had failed to comply with their part of the agreement. The reasonableness or unreasonableness of the agreement itself is not before us. All of the parties to the alleged agreement were sui juris; such an agreement would not be illegal or against public policy.

“Ordinarily, when parties are on equal footing, competent to contract, enter into an agreement on a lawful subject, and do so fairly and honorably, the law does not permit inquiry as to whether the contract was good or bad, whether it was wise or foolish. . . .” Roberson v. Williams, 240 N.C. 696, 88 S.E. 2d 811 (1954) ; Heating Co. v. Board of Education, 268 N.C. 85, 150 S.E. 2d 65 (1966).

A question for the triers of facts was presented and the jury found for the plaintiff. There was no error in the trial court by this procedure.

Defendants also contend, in their brief, that the plaintiff has not complied with G.S. 25-2-201, the statute of frauds provision relating to sales under the Uniform Commercial Code. The defendants, however, did not raise this defense in their pleadings or in the trial below. The defendant’s answer was filed subsequent to the effective date of the North Carolina Rules of Civil Procedure. Rule 8(c) sets forth certain affirmative defenses which must be pleaded. The statute of frauds is one of these affirmative defenses. Defendants, not having raised this defense in their pleadings or in the trial below, cannot now present it before this Court. See 1 McIntosh, N. C. Practice 2d, Section 970.65 (Supp. 1970) and Cohoon v. Swain, 216 N.C. 317, 5 S.E. 2d 1 (1939).

The second question raised by the defendants pertains to the instructions to the jury given by the trial judge. We have reviewed these instructions in their entirety, and we think that when so considered, the trial judge presented to the jury the legal precepts involved and fairly and adequately instructed the jury.

*688 The trial presented a factual determination by the triers of fact. We find no prejudicial error in the trial of this case.

Affirmed.

Judges Britt and Hedrick concur.

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179 S.E.2d 867, 10 N.C. App. 685, 1971 N.C. App. LEXIS 1697, Counsel Stack Legal Research, https://law.counselstack.com/opinion/grissett-v-ward-ncctapp-1971.

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