Hinshaw v. Joyce

105 S.E.2d 653, 249 N.C. 218, 1958 N.C. LEXIS 453

• Court: Supreme Court of North Carolina
• Decided: November 19, 1958
• Status: Published

Opinion

PeR Curiam.

The only assignments of error are the refusal to allow plaintiff’s motions to nonsuit the counterclaim and the refusal to set aside the verdict as contrary to the weight of the evidence.

The motion to nonsuit made at the close of defendant’s evidence was waived when plaintiff offered evidence for the purpose of defeating the counterclaim. G.S. 1-183.

There is evidence in the record to support each averment of the counterclaim. It is apparently conceded that the bulldozer was not a 1945 model as described in the bill of sale but was in fact manufactured prior to 1940. The truth of the evidence was a matter for the jury.

Whether a court should set aside a verdict as contrary to the weight of the evidence is a matter of discretion, and the refusal to exercise the discretion is not appealable. Walston v. Greene, 246 N.C. 617, 99 S.E. 2d 805.

Affirmed.

Paricer, J., not sitting.