J. N. Coe & Co. v. First Realty & Loan Co.

150 S.E. 334, 197 N.C. 689, 1929 N.C. LEXIS 337

Opinion

Stacy, O. J.

The following excerpt, taken from the charge, constitutes one of the defendant’s exceptive assignments of error:

“What that award is, as to the amount, gentlemen, is not before you, because it might be some evidence, or control or prejudice you in some way. As to the way they decided the matter isn’t for you at all. You are to decide it under the instructions of the court, and from the evidence in the case.”

The submission, which is the basis of every arbitration and award, being sufficient in the instant case, both in substance and in form, as well as the award made in pursuance thereof, and the latter having been offered in evidence without objection, we think it was error on the part of the trial court to withdraw the award from the consideration of the jury. Mayberry v. Mayberry, 121 N. C., 248, 28 S. E., 349; Moore v. Gherkin, 44 N. C., 73.

If an unquestioned arbitration and award be valid as an estoppel when properly pleaded and proved, it would seem to follow as a necessary corollary that it must be competent as evidence to establish such defense. Williams v. Mfg. Co., 154 N. C., 205, 70 S. E., 290, S. c., 153 N. C., 7, 68 S. E., 902; Geiger v. Caldwell, 184 N. C., 387, 114 S. E., 497; Hemphill v. Gaither, 180 N. C., 604, 105 S. E., 183; 2 R. C. L., 388.

It is true that in other portions of tbe charge, the award is treated as properly being in evidence, but whether it was considered or discarded by the jury in answering the first issue, we are not able to say. Where there are conflicting instructions with respect to a material matter, a new trial will be granted, as the jury is not presumed to know which one of the two states the law correctly, and we cannot say that the erroneous instruction was not followed. S. v. Falkner, 182 N. C., 793, 108 S. E., 756; Edwards v. R. R., 132 N. C., 99, 43 S. E., 585.

. There are other exceptions appearing in the record, worthy of consideration, but as the questions presented thereby are not likely to arise on another hearing, we shall not consider them now.

New trial.