Hoke v. . Whisnant

94 S.E. 446, 174 N.C. 658, 1917 N.C. LEXIS 166

• Court: Supreme Court of North Carolina
• Decided: December 5, 1917
• Status: Published

Opinion

Allen, J.

The motion by the plaintiff to set aside the verdict and for a new trial was one addressed to the discretion of the court, and is not reviewable. Billings v. Observer, 150 N. C., 543; Harvey v. R. R., 153 N. C., 574.

Nor can the motion for judgment for $1,200 be allowed, because there is neither finding by the jury nor admission in the pleadings or on the trial that the plaintiff has been damaged $1,200.

On the contrary, while the defendants did not deny that the plaintiff paid $1,200, they contended, and introduced evidence in support of their contention, that the interest in the business bought by the plaintiff was worth $1,200 at the time of the sale, and that the loss sustained by the plaintiff was due to subsequent mismanagement.

The measure of damages in actions of this character, where the property is retained by the vendee, as here, is the difference between the real value of the property and its value as represented to be, and not the amount paid by the vendee. Lunn v. Shermer, 93 N. C., 165; Robertson v. Halton, 156 N. C., 218.

The plaintiff was not entitled to judgment for $1,200, and it would have been error to instruct the jury to answer the second issue in that amount', if requested to do so.

The exception of the defendant to the judgment must be sustained, as the action is in tort to recover damages, and not in contract.

The principle is stated in Harper v. R. R., 161 N. C., 451, as follows: “Damages recovered for a tort do not, as a matter of law, bear interest until after judgment; but when the tort consists solely in the destruction of property, and not in personal injuries, this Court has held that the jury may in their discretion give interest on the value of the property destroyed from the date of its destruction, in addition to the actual value of the property. Rippey v. Miller, 46 N. C., 480; Guano Co. v. Magee, 86 N. C., 351; Williams v. Lumber Co., 118 N. C., 928; Lance v. Butler, 135 N. C., 419; Stephenson v. Koonce, 103 N. C., 266; Wilson v. Troy, 18 L. R. A., 449, and notes.”

The distinction between the recovery of interest as damages in actions of tort and in actions ex contractu is pointed out and discussed in Bond v. Cotton Mills, 166 N. C., 20.

It was not necessary for the defendant to assign error, as his appeal is from the judgment.

Clark, C. J., says, in Ullery v. Guthrie, 148 N. C., 418 : “It has always been held that an appeal is itself a sufficient exception and assignment of error to the judgment, for that is a matter appearing upon the face of the record proper, and as to errors on the face of the record-no exception is required. Revisal, sec. 1542. This is fully discussed in Thornton v. Brady, 100 N. C., 38, which has been repeatedly cited since. B.ut if an exception and assignment of error to the judgment were necessary, the appeal itself is a sharp assignment that the facts found or admitted do not justify the judgment. Appomattox Company v. Buffalo, 121 N. C., 37; Murray v. Southerland, 125 N. C., 176; Delozier v. Bird, 123 N. C., 692; Cummings v. Hoffman, 113 N. C., 269. Of course, if the appeal is an exception to the judgment, it is on the ground that the facts found or admitted do not justify the judgment. And when there are no other exceptions in the case, this one exception cannot be grouped.”

The judgment must be reformed by striking out the interest, except from the term at which the action was tried.

Plaintiff's appeal affirmed.

Defendant’s appeal reversed.

IíoKE, J., not sitting.