Palmer v. . Jennette

42 S.E.2d 345, 227 N.C. 377, 1947 N.C. LEXIS 424

• Court: Supreme Court of North Carolina
• Decided: April 30, 1947
• Status: Published

Opinion

Seawell, J.

Among other objections to the trial not necessary to discuss at length, the appellants insist that the judgment is not supported by the verdict, because of alleged irreconcilable repugnances in the answers to the several issues. Specifically it is contended that the fifth issue, permitting recovery and determining the amount thereof, is contrary to the findings under the third and fourth issues sustaining defendants’ allegation that there was in the sales contract an express warranty of merchantability of the produce sold, and that plaintiffs had breached that warranty. Indeed, it is contended that because of the favorable answers to these two issues defendants were entitled to a judgment, which they tendered, that plaintiffs recover nothing, operating as a judgment non obstante veredicto as to the fifth issue.

The motion for judgment was properly overruled. Supposing such irreconcilable repugnance to exist, it is not the practice of the Court to enter a judgment non obstante veredicto upon the supposedly favorable issue and ignore the other. Where the answers to the issues are so contradictory as to invalidate the judgment, the practice of the Court is to grant a new trial, or venire de novo, because of the evident confusion. Jernigan v. Neighbors, 195 N. C., 231, 141 S. E., 586; Porter v. R. R., 97 N. C., 66, 2 S. E., 581.

The Court might have been somewhat relieved in its review of this case if an issue had been submitted directly bearing on the damages sustained by reason of the breach of warranty alleged in defendant’s answer, but no objection was made to the absence of such an issue. In its absence and upon the issues submitted, however, the Court is of opinion that the instructions to the jury with respect to damages recoverable by defendants for the alleged breach of warranty or the balance of purchase price claimed by the plaintiff, — both subjects being interrelated, — were not sufficiently clear to guide the jury in arriving at a proper conclusion.

A somewhat anomalous condition was brought about by the manner in which the case was presented in the trial court and we do not ascribe any fault for the indecisive result to the able and experienced judge who tried the case. However, for the reasons stated, we think the defendant is entitled to a new trial. It is so ordered.

New trial.