Lummus Cotton Gin Co. v. Wise

Supreme Court of North Carolina

Lummus Cotton Gin Co. v. Wise

157 S.E. 20, 200 N.C. 409, 1931 N.C. LEXIS 343

CourtSupreme Court of North Carolina

DecidedFebruary 25, 1931

StatusPublished

Cited by1 cases

This text of 157 S.E. 20 (Lummus Cotton Gin Co. v. Wise) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lummus Cotton Gin Co. v. Wise, 157 S.E. 20, 200 N.C. 409, 1931 N.C. LEXIS 343 (N.C. 1931).

Pincite

Opinion

Pee CueiaM.

On tbe admissions in tbe answer, but for the counterclaim alleged therein, tbe plaintiff was entitled to judgment on tbe pleadings. Tbe burden of proof was therefore on tbe defendant, as tbe trial judge correctly ruled.

A counterclaim is a cross-action by tbe defendant against tbe plaintiff. Tbe burden of proof is always on tbe defendant, who admits tbe cause of action alleged in tbe complaint, and relies upon a counterclaim alleged in bis answer, which is denied' in tbe reply. In tbe absence of evidence tending to support tbe counterclaim, tbe defendant should be nonsuited. McQueen v. Bank, 111 N. C., 509, 16 S. E., 207.

In tbe instant case there was evidence in support of tbe allegations in tbe answer, constituting a counterclaim. There was, therefore, no error in tbe refusal of plaintiff’s motion at tbe close of all tbe evidence tbat defendant’s counterclaim or cross-action be dismissed.

Upon consideration of tbe other assignments of error by plaintiff on tbis appeal, we are of tbe opinion tbat they cannot be sustained. Defendant can neither read nor write. Tbe warranty contained in tbe written contract was not read or explained to him by tbe salesman who solicited bis order for tbe cotton gin. Under tbe circumstances as shown by all tbe evidence, and as found by tbe jury, tbe conditions precedent to a claim by tbe defendant for damages resulting from a breach of tbe warranty cannot and ought not to be enforced in tbe instant case. Tbe judgment is affirmed. We find

No error.

Free access — add to your briefcase to read the full text and ask questions with AI

Pee CueiaM.

On tbe admissions in tbe answer, but for the counterclaim alleged therein, tbe plaintiff was entitled to judgment on tbe pleadings. Tbe burden of proof was therefore on tbe defendant, as tbe trial judge correctly ruled.

A counterclaim is a cross-action by tbe defendant against tbe plaintiff. Tbe burden of proof is always on tbe defendant, who admits tbe cause of action alleged in tbe complaint, and relies upon a counterclaim alleged in bis answer, which is denied' in tbe reply. In tbe absence of evidence tending to support tbe counterclaim, tbe defendant should be nonsuited. McQueen v. Bank, 111 N. C., 509, 16 S. E., 207.

In tbe instant case there was evidence in support of tbe allegations in tbe answer, constituting a counterclaim. There was, therefore, no error in tbe refusal of plaintiff’s motion at tbe close of all tbe evidence tbat defendant’s counterclaim or cross-action be dismissed.

Upon consideration of tbe other assignments of error by plaintiff on tbis appeal, we are of tbe opinion tbat they cannot be sustained. Defendant can neither read nor write. Tbe warranty contained in tbe written contract was not read or explained to him by tbe salesman who solicited bis order for tbe cotton gin. Under tbe circumstances as shown by all tbe evidence, and as found by tbe jury, tbe conditions precedent to a claim by tbe defendant for damages resulting from a breach of tbe warranty cannot and ought not to be enforced in tbe instant case. Tbe judgment is affirmed. We find

No error.

Cite This Page — Counsel Stack

Bluebook (online)

157 S.E. 20, 200 N.C. 409, 1931 N.C. LEXIS 343, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lummus-cotton-gin-co-v-wise-nc-1931.

Opinion

Related

Cite This Page — Counsel Stack