Quarles v. . Jenkins

3 S.E. 395, 98 N.C. 258

• Court: Supreme Court of North Carolina
• Decided: September 5, 1887
• Status: Published

Opinion

Merrimon, J.

The proceedings are informal and confused. In effect the complaint alleges two distinct causes of action — the first for money had and received, growing out of transactions that render an account necessary — the second for usury.

No question was made as to whether these causes of action could be united in the same action. As to the first, the defendant pleaded a final settlement and mutual discharges as to sundry dealings, including the first cause of action between the plaintiff and himself, on the 25th. of July, 1882. This the plaintiff denies, and thus an issue was raised which the Court properly held must be tried before ordering the account to be taken incident to the first cause of action. Clements v. Rogers, 95 N. C., 248.

The plaintiff did not allege a settlement which he sought to attack for sufficient cause and have canceled or set aside. by this action; he denies broadly that there was a final settlement as alleged by the defendant. It was not therefore necessary that he should allege specific errors, fraud or the like in a settlement he sought to overturn. The simple question raised was, was there a final settlement as alleged by the defendant or not?

The evidence as to whether there was or was not was conflicting; it tended to prove in one aspect of it that the parties essayed a settlement which was not consummated; that what was done in that respect was not to be treated as final, unless certain conditions were observed and performed on the part of the defendant.

The Court therefore properly instructed the jury, in effect, that if the settlement alleged was to be final, on conditions to be observed and performed on the part of the defendant, and he failed to observe and perform the same according to the terms as agreed upon between the parties, then there was no such settlement and discharge.

The Court properly refused to submit to the jury an issue as to whether or not a person named had paid the debt due from the plaintiff to the defendant, and “turned over all the papers to him.”

This was evidential matter to be offered in evidence on the trial of issues raised by the pleadings to which it might be pertinent. Only the issues raised by the pleadings should be submitted to the jury, except that the Court may in its discretion submit questions of fact as allowed by the statute. Porter v. The Railroad Co., 97 N. C., 66.

As to the second cause of action the defendant denied the allegations of the complaint. The issue thus raised was not tried. Any question therefore as to how far the defendant can be compelled to testify as to facts tending to charge him with liability for the usury alleged is not before us, and we express no opinion in that respect.

No error. Affirmed.