Parker v. . Smith

Supreme Court of North Carolina

Parker v. . Smith

64 N.C. 291

CourtSupreme Court of North Carolina

DecidedJanuary 5, 1870

StatusPublished

Cited by20 cases

This text of 64 N.C. 291 (Parker v. . Smith) 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

Parker v. . Smith, 64 N.C. 291 (N.C. 1870).

Pincite

Opinion

Dick, J.

When a defendant suffers a judgment to go by ■default, be admits tbe cause of action. If tbe action is on a single bond, a covenant for tbe payment of money, bill of •exchange, promissory note, or a signed account, tbe judgment is final, and tbe Clerk ascertains tbe interest due by law, without a writ of inquiry: Rev. Code, cb. 31,sec. 91.

When tbe action sounds in damages, as in assumpsit, covenant, trespass, &o., a judgment by default is only interlocutory, and tbe amount of damages must be ascertained by a jury, upon a writ of inquiry: 1 Tidd. Pr., 573, 580.

*292 If the plaintiffs claim for damages is precise, and fixed by an agreement of tbe parties, or can be rendered certain by mere computation, there is no need of proof, as the judgment-by default admits the claim: Garrard v. Dollar, 4 Jon. 175. In actions where the measure of damages is to be-given by the jury, the assessment must be made upon the proofs introduced by each party, and the onus of proof as to the amount of the damages, is upon the plaintiff; as a judgment by default admits something to be due, but not the amount.

The case before us is an action of assumpsit, for goods, wares and merchandise sold and delivered, and the specific articles are not set forth in the declaration. The judgment by default admitted the cause of action, and the plaintiffs were entitled to nominal damages without introducing any proof; but in seeking substantial damages they were not relieved from the necessity of proving the delivery of each article, and the value thereof: 3 Chit. Gen. Pr., 673; 2 Burr., 907.

Upon this inquisition the defendant was at liberty, by cross-examining the plaintiffs’ witnesses, and by other evidence in reply, to disprove anything which was necessary for the plaintiffs to establish, in order to ascertain their damages. On the trial “the plaintiffs introduced evidence to prove the sale and delivery of the goods, &c.,” and his Honor erred in refusing to allow the defendant to introduce evidence in reply. The plaintiffs were only entitled to such damages as the jury would assess, after hearing the proofs of both parties to the action.

There must be a vertiré de novo.

Let this be certified.

Pee. Curiam. Beversed.

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Dick, J.

When a defendant suffers a judgment to go by ■default, be admits tbe cause of action. If tbe action is on a single bond, a covenant for tbe payment of money, bill of •exchange, promissory note, or a signed account, tbe judgment is final, and tbe Clerk ascertains tbe interest due by law, without a writ of inquiry: Rev. Code, cb. 31,sec. 91.

When tbe action sounds in damages, as in assumpsit, covenant, trespass, &o., a judgment by default is only interlocutory, and tbe amount of damages must be ascertained by a jury, upon a writ of inquiry: 1 Tidd. Pr., 573, 580.

*292 If the plaintiffs claim for damages is precise, and fixed by an agreement of tbe parties, or can be rendered certain by mere computation, there is no need of proof, as the judgment-by default admits the claim: Garrard v. Dollar, 4 Jon. 175. In actions where the measure of damages is to be-given by the jury, the assessment must be made upon the proofs introduced by each party, and the onus of proof as to the amount of the damages, is upon the plaintiff; as a judgment by default admits something to be due, but not the amount.

The case before us is an action of assumpsit, for goods, wares and merchandise sold and delivered, and the specific articles are not set forth in the declaration. The judgment by default admitted the cause of action, and the plaintiffs were entitled to nominal damages without introducing any proof; but in seeking substantial damages they were not relieved from the necessity of proving the delivery of each article, and the value thereof: 3 Chit. Gen. Pr., 673; 2 Burr., 907.

Upon this inquisition the defendant was at liberty, by cross-examining the plaintiffs’ witnesses, and by other evidence in reply, to disprove anything which was necessary for the plaintiffs to establish, in order to ascertain their damages. On the trial “the plaintiffs introduced evidence to prove the sale and delivery of the goods, &c.,” and his Honor erred in refusing to allow the defendant to introduce evidence in reply. The plaintiffs were only entitled to such damages as the jury would assess, after hearing the proofs of both parties to the action.

There must be a vertiré de novo.

Let this be certified.

Pee. Curiam. Beversed.

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64 N.C. 291, Counsel Stack Legal Research, https://law.counselstack.com/opinion/parker-v-smith-nc-1870.

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