Kannan v. . Assad

108 S.E. 383, 182 N.C. 77, 1921 N.C. LEXIS 178

• Court: Supreme Court of North Carolina
• Decided: September 28, 1921
• Status: Published

Opinion

Stacy, J.

"We do not think the defendant is entitled to a judgment on the verdict in view of the admissions and concessions made in open court and before the rendition of the verdict. The case was tried on a different theory with a different understanding, and it would seem that the defendant ought to be content with the result.

It is well understood that, except in proper instances, a party to a suit should not be allowed to change his position with respect to a material matter, during the course of litigation, nor should he be allowed to “blow hot and cold in the same breath.” Ingram v. Power Co., 181 N. C., 359; Lindsey v. Mitchell, 174 N. C., 458. A fortiori, after a verdict has been rendered against him, he should not be permitted to withdraw his admissions solemnly made on trial. This would not be conducive to the ending of litigation, a policy much favored in the law. Webb v. Rosemond, 172 N. C., 848; Coble v. Barringer, 171 N. C., 445.

His Honor might well have found as a fact, and embodied it in his judgment, that an affirmative answer to the second issue was conceded to mean and admittedly would work a forfeiture of the lease. This would have cured any apparent irregularity. But we think the judgment is supported by the record and is entirely sufficient without such finding being incorporated therein.

It has been held with us in a number of cases that the verdict of a jury may be given significance and correctly interpreted by reference to the pleadings, the evidence, admissions of the parties, and the charge of the court. Howell v. Pate, 181 N. C., 117; Reynolds v. Express Co., 172 N. C., 487; Bank v. Wilson, 168 N. C., 557. Tested by this rule or standard, we have experienced no difficulty in arriving at the conclusion that the judgment" below should be affirmed.

“He that sweareth to his own hurt, and changeth not,” is promised an abiding place, from where he “shall never be moved” (Psalm XV), but the present defendant apparently "has not brought himself within the protection vouchsafed to this class. He invokes the promise and asks not to be moved, because be bas spoken to bis own burt, but be ■seems unwilling to comply witb tbe steadfast or “cbangetb not” condition.

After a careful consideration of tbe defendant’s exceptions and assignments of error, we conclude tbat tbe judgment of tbe Superior Court must be upheld, and it is so ordered.

No error.