Clarkson, J.
At the close of plaintiff’s evidence and at the close of all the evidence the defendants W. M. DeHart and T. J. Eerguson, in the court below, made motions for judgment as in _ case of nonsuit. C. S., 561. The court below overruled these motions, and in this we can see no error.
The defendants saw fit to try the case on the issues appearing in the record. In fact, the defendant DeHart agreed to the issues and prayed for an additional one: “In apt time the defendant W. M. DeHart tendered the following issue, which he requested the court to submit to the jury, as follows: ‘That the defendant W. M. DeHart hereby tenders the issues prepared and submitted to the court, and, in addition thereto, the following issue: Q. Is the plaintiff J. C. Queen entitled to bring, prosecute, and recover in this action as against the defendant W. M. DeHart?’ ”
First. We consider the exceptions and assignments of error of W. M. DeHart. It is well settled in this jurisdiction that a case will be reviewed on the same theory on which it was tried in the court below, and appellants may not have a case heard on a different theory from that on which it was tried. We see no error in refusing the issue tendered by W. M. DeHart on the facts of this case. We think there was sufficient competent evidence on the part of plaintiff to sustain the issues.
We do not think that the defendants’ plea of
res judicata
can be sustained. The note given by W. M. DeHart and T. O. Queen was endorsed and transferred to Ed. Floyd and then to R. E. Andrews, who instituted suit on same against W. M. DeHart, T. O. Queen, and J. C. Queen. No service of summons was had upon T. O. Queen (brother of plaintiff J. G. Queen), who filed no answer. W. M. DeHart set up the defense that the note was not to be binding on him unless signed by T. J. Ferguson, and won. Ferguson was not a party to this suit. The plaintiff alleged that ■ he had to repay Andrews the amount which Andrews had paid for the note. The present action is on the original contract.
If W. M. DeHart signed the note conditionally, he did not comply with his written contract — this was a breach of his written contract. He did not give “his note,” but gave a conditional note, according to his version. DeHart, although he admits getting plaintiff’s property and refusing to pay him or return it, claims he is absolved because the contract called for a note, which, although he signed, the jury in the former case found he had only signed conditionally, and, thus, as to him, the note was void. In other words, the execution and delivery by him to the plaintiff of a void note completely discharged his obligations under the contract. This is his main defense. We cannot agree with him. He also alleges that if the contract was binding he was only liable for one-third of the amount claimed.
In
Gillam v. Edmonson,
154 N. C., 127 (130), we find: “The doctrine is that an estoppel of record will bind parties and privies as to matters in issue between them, but it does not conclude as to matters not involved in the issue, nor when they claim in a different right.”
Price v. Edwards,
178 N. C., 493.
We
see no error in the court below refusing DeHart’s prayer for special instructions on the ground of estoppel or
res judicata.
The plaintiff in the present action “claims in a different right.” The action is bottomed on the original contract. Under the original contract all the conditions of the contract were complied with- — entitling plaintiff to recover. He delivered to
W.
M. DeHart, T. C. Queen, and T. J. Ferguson the certificates of deposit and check totaling $3,901.10, this was accepted by the Corporation Commission and the bank reopened. Under this contract the defendants became indebted to the plaintiff for the amount. The giving of the note was a collateral matter for plaintiff’s benefit, and if defendants had not given a note this would not relieve them of their liability on the contract. The fact that
W.
M. DeHart and J. C. Queen signed the note and T. J. Ferguson would not did not release any of the defendants from their liability to pay the indebtedness.
The defendants excepted and assigned error to the charge of the court below (which cannot be sustained), as follows: “Then another principle of law would apply. And that is, if you find by the greater weight of the evidence that at the time of the execution of the contract the plaintiff Queen turned over to the defendants the certificates of deposit and a check for his account that was subject to check, and that that was to be the consideration for the execution of this contract and the note, and you find that the defendants received it and used it for the purposes intended, and kept it, and that it has never been restored, that the certificates and the check have never been restored to the plaintiff J. C. Queen, then the law would raise in favor of the plaintiff a promise on the part of the defendants to pay him the amount the contract called for.”
The court below, to sustain this portion of the charge, quoted from
Montgomery v. Lewis,
187 N. C., 577 (579-80), the latter part of which we quote: “It must not be forgotten that the object of the present action is not to correct, or even to set aside or modify, the defendant’s deed, or to obtain relief against its apparent effect. The deed remains intact; but the object is to recover the value of the lot, the retention of which by the defendant would constitute unearned benefit or 'unjust enrichment.’ 'Wi.lliston says, 'The principle of justice which requires the return of money paid under a mistake requires that other benefits received under a similar mistake should likewise be restored.’ Contracts, Yol. 3, sec. 1575. The suit has its foundation in the doctrine of
quasi-
contracts — obligations occupying a field between contract and tort.
They are imposed or created by law without regard to any agreement on the part of the party bound, because his promise is fictitious and his liability arises from implication of law, as when a person by wrongfully detaining or appropriating the property of another becomes liable to the owner for its reasonable value. 13 C. J., 233 (10) ; 6 R. O. L., 588 (7).” We think the charge consonant with the facts in the case.
The defendants excepted and assigned error to the following questions, which cannot be sustained: “Q. Prior to the time you entered suit, did Mr. DeHart ever come to see you and endeavor to settle this matter with you? Ans.: Yes, he did; I had a conference with Mr. DeHart after this note had been executed. Q. What did he say in regard to the paper ? Ans.: Mr. DeHart came to my house, I don’t remember the date exactly, and he said he had a check for one-third of this note and asked me if I would accept it on his payment, and I told him I would not. Q. Why didn’t you accept the check ? Ans.: Because I wouldn’t release him.” The defendant DeHart contends that this was incompetent, as it was an unaccepted offer of compromise.
In
Montgomery v. Lewis, supra,
at p. 578, it is said: “The defendant excepted to certain evidence on the ground that it embodied a rejected offer of compromise.
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Clarkson, J.
At the close of plaintiff’s evidence and at the close of all the evidence the defendants W. M. DeHart and T. J. Eerguson, in the court below, made motions for judgment as in _ case of nonsuit. C. S., 561. The court below overruled these motions, and in this we can see no error.
The defendants saw fit to try the case on the issues appearing in the record. In fact, the defendant DeHart agreed to the issues and prayed for an additional one: “In apt time the defendant W. M. DeHart tendered the following issue, which he requested the court to submit to the jury, as follows: ‘That the defendant W. M. DeHart hereby tenders the issues prepared and submitted to the court, and, in addition thereto, the following issue: Q. Is the plaintiff J. C. Queen entitled to bring, prosecute, and recover in this action as against the defendant W. M. DeHart?’ ”
First. We consider the exceptions and assignments of error of W. M. DeHart. It is well settled in this jurisdiction that a case will be reviewed on the same theory on which it was tried in the court below, and appellants may not have a case heard on a different theory from that on which it was tried. We see no error in refusing the issue tendered by W. M. DeHart on the facts of this case. We think there was sufficient competent evidence on the part of plaintiff to sustain the issues.
We do not think that the defendants’ plea of
res judicata
can be sustained. The note given by W. M. DeHart and T. O. Queen was endorsed and transferred to Ed. Floyd and then to R. E. Andrews, who instituted suit on same against W. M. DeHart, T. O. Queen, and J. C. Queen. No service of summons was had upon T. O. Queen (brother of plaintiff J. G. Queen), who filed no answer. W. M. DeHart set up the defense that the note was not to be binding on him unless signed by T. J. Ferguson, and won. Ferguson was not a party to this suit. The plaintiff alleged that ■ he had to repay Andrews the amount which Andrews had paid for the note. The present action is on the original contract.
If W. M. DeHart signed the note conditionally, he did not comply with his written contract — this was a breach of his written contract. He did not give “his note,” but gave a conditional note, according to his version. DeHart, although he admits getting plaintiff’s property and refusing to pay him or return it, claims he is absolved because the contract called for a note, which, although he signed, the jury in the former case found he had only signed conditionally, and, thus, as to him, the note was void. In other words, the execution and delivery by him to the plaintiff of a void note completely discharged his obligations under the contract. This is his main defense. We cannot agree with him. He also alleges that if the contract was binding he was only liable for one-third of the amount claimed.
In
Gillam v. Edmonson,
154 N. C., 127 (130), we find: “The doctrine is that an estoppel of record will bind parties and privies as to matters in issue between them, but it does not conclude as to matters not involved in the issue, nor when they claim in a different right.”
Price v. Edwards,
178 N. C., 493.
We
see no error in the court below refusing DeHart’s prayer for special instructions on the ground of estoppel or
res judicata.
The plaintiff in the present action “claims in a different right.” The action is bottomed on the original contract. Under the original contract all the conditions of the contract were complied with- — entitling plaintiff to recover. He delivered to
W.
M. DeHart, T. C. Queen, and T. J. Ferguson the certificates of deposit and check totaling $3,901.10, this was accepted by the Corporation Commission and the bank reopened. Under this contract the defendants became indebted to the plaintiff for the amount. The giving of the note was a collateral matter for plaintiff’s benefit, and if defendants had not given a note this would not relieve them of their liability on the contract. The fact that
W.
M. DeHart and J. C. Queen signed the note and T. J. Ferguson would not did not release any of the defendants from their liability to pay the indebtedness.
The defendants excepted and assigned error to the charge of the court below (which cannot be sustained), as follows: “Then another principle of law would apply. And that is, if you find by the greater weight of the evidence that at the time of the execution of the contract the plaintiff Queen turned over to the defendants the certificates of deposit and a check for his account that was subject to check, and that that was to be the consideration for the execution of this contract and the note, and you find that the defendants received it and used it for the purposes intended, and kept it, and that it has never been restored, that the certificates and the check have never been restored to the plaintiff J. C. Queen, then the law would raise in favor of the plaintiff a promise on the part of the defendants to pay him the amount the contract called for.”
The court below, to sustain this portion of the charge, quoted from
Montgomery v. Lewis,
187 N. C., 577 (579-80), the latter part of which we quote: “It must not be forgotten that the object of the present action is not to correct, or even to set aside or modify, the defendant’s deed, or to obtain relief against its apparent effect. The deed remains intact; but the object is to recover the value of the lot, the retention of which by the defendant would constitute unearned benefit or 'unjust enrichment.’ 'Wi.lliston says, 'The principle of justice which requires the return of money paid under a mistake requires that other benefits received under a similar mistake should likewise be restored.’ Contracts, Yol. 3, sec. 1575. The suit has its foundation in the doctrine of
quasi-
contracts — obligations occupying a field between contract and tort.
They are imposed or created by law without regard to any agreement on the part of the party bound, because his promise is fictitious and his liability arises from implication of law, as when a person by wrongfully detaining or appropriating the property of another becomes liable to the owner for its reasonable value. 13 C. J., 233 (10) ; 6 R. O. L., 588 (7).” We think the charge consonant with the facts in the case.
The defendants excepted and assigned error to the following questions, which cannot be sustained: “Q. Prior to the time you entered suit, did Mr. DeHart ever come to see you and endeavor to settle this matter with you? Ans.: Yes, he did; I had a conference with Mr. DeHart after this note had been executed. Q. What did he say in regard to the paper ? Ans.: Mr. DeHart came to my house, I don’t remember the date exactly, and he said he had a check for one-third of this note and asked me if I would accept it on his payment, and I told him I would not. Q. Why didn’t you accept the check ? Ans.: Because I wouldn’t release him.” The defendant DeHart contends that this was incompetent, as it was an unaccepted offer of compromise.
In
Montgomery v. Lewis, supra,
at p. 578, it is said: “The defendant excepted to certain evidence on the ground that it embodied a rejected offer of compromise. It is true, if a person offer to compromise a demand he does not thereby necessarily admit that it is just, but if pending a compromise he makes a distinct admission of an independent fact, the admission may be received in evidence.”
As a defense in this case, defendant DeHart contends that if he owes anything, it was only one-third, and the jury so found on an issue not objected to by him. If DeHart ever had a valid objection, he has waived it. He testified: “Cling Queen told me that Ferguson had not signed the note. When I found this out, I went to J. O. Queen’s home; I went to see Candler and got $1,300.00, and went to see him about that note, and I wanted to pay one-third, and I told him that was what I had come for, but he wouldn’t take it.”
In
Shelton v. R. R.,
193 N. C., 670 (674), it is said: “It is thoroughly established in this State that if incompetent evidence is admitted over objection, but the same evidence has theretofore or thereafter been given in other parts of the examination without objection, the benefit of the exception is ordinarily lost.
Smith v. R. R.,
163 N. C., 143;
Tillett v. R. R.,
166 N. C., 515;
Beaver v. Fetter,
176 N. C., 334;
Marshall v. Tel. Co.,
181 N. C., 410.”
Defendants W. M. DeHart, T. C. Queen and T. J. Ferguson were interested in the reopening of the bank, DeHart being a stockholder and director and Queen and Ferguson being stockholders. Defendant T. C.
Queen, who is a brother of plaintiff, did not deny liability on the contract or note. We see nothing in the contention of DeHart in reference to the court below having the jury retire and make clear a doubtful verdict.
In
Allen v. Yarborough,,
201 N. C., 568 (569), it is said; “Before a verdict is complete it must be accepted by the court for record.
S. v. Godwin,
138 N. C., 582;
S. v. Bagley,
158 N. C., 608;
S. v. Snipes,
185 N. C., 743. This does not imply, however, that in accepting or rejecting a verdict the presiding judge may exercise unrestrained discretion. It is his duty to scrutinize a verdict with respect to its form and substance and to prevent a doubtful or insufficient finding from becoming a record of the court.
S. v. Bazemore,
193 N. C., 336. But his power to accept or reject the jury’s finding is restricted to the exercise of a limited legal discretion. He may direct the jury to reconsider their verdict if it is imperfect, informal, insensible, repugnant, or not responsive to the issues or indictment, or if it cannot sustain a judgment (citing authorities).
S. v. Arrington,
7 N. C., 571, it was said, When a jury returns with an informal or insensible verdict, or one that is not responsive to the issues submitted, they may be directed by the court to reconsider; but not where the verdict is not of such description.’ ”
We think the charge did not impinge N. C. Code, 1935 (Michie), sec. 654.
Second. We consider the exceptions and assignments of error of T. J. Ferguson. What is said as to the liability of DeHart is applicable in some respects to Ferguson, and we will not repeat. Ferguson’s plea savors of “confession and avoidance.” He admits signing the contract sued on and his primary liability thereunder. He seeks to avoid this liability by reason of an alleged verbal agreement with plaintiff, releasing him from his obligation.
Ferguson testified, in part; “I signed the contract that was introduced in evidence with T. O. Queen and W. M. DeHart. We all signed it together at my dairy farm. Will DeHart, Mr. Coffey and Queen brought the contract to my place and called me out and we discussed it, and that was where I signed it, and DeHart turned over to me five shares of bank stock for signing that contract. I never had any contract with the bank; I signed the contract and right at the same time he turned over to me the bank stock. At the time of the signing of the contract we discussed it and each one said he would be liable for one-third of that contract, T. O. Queen, W. M. DeHart, and myself would all go one-third, and I signed the contract with that understanding. The contract calls for a note, but I never signed the note. Later, after signing the contract, I had a conversation with Mr. J. O. Queen about his releasing me from the contract. I turned over to him the five shares of bank stock and he agreed to release me from any liability on the contract. I turned
over the hank stock to him and he agreed to release me from the contract, and there was a further consideration that I was to go and borrow for Bob Jenkins a sufficient amount to reopen the bank.” On the other hand, this was contradicted by plaintiff J. O. Queen.
The evidence was
pro
and
con.
The jury took plaintiff’s version of what occurred- — -that Eerguson was never released from his contract. We do not think the charge complained of, exception and assignment of error 11, which deals with the 4th issue, by Eerguson, prejudicial from the pleadings and evidence and the theory on which the case was tried. In fact, Eerguson, in his answer, says: “Thereupon this answering defendant went to the plaintiff herein, carrying with him the five shares of stock that had theretofore been delivered to him by his codefendant, W. M. DeHart, and stated to the plaintiff herein that he would deliver said bank stock to the plaintiff if the plaintiff would release him from the contract theretofore signed and take the place of this answering defendant upon said contract and upon said note, and the plaintiff agreed thereto. . . . And the agreement to take said stock and release this answering defendant from said contract was made and entered into in the presence of this answering defendant’s codefendant, T. C. Queen, who consented to said release. . . . This answering defendant went to the place of business of his codefendant, W. M. DeHart, and explained the whole transaction and release to him, to which he readily agreed.” At least the charge complained of did not amount to prejudicial or reversible error.
Later, unobjeeted to, the court charged the jury on this aspect: “I have already explained to you what the breach of a contract is; in short, it is a failure to comply with the terms, agreements, and stipulations of a contract, and if Eerguson did not make the trade with Mr. Queen whereby he was released, as contended by him, then I understand he does not contend he has complied with the contract. I understand he admits he and the other defendants received the amount of the certificates and the checking deposit of the plaintiff, and that he has not been restored, and if you find those to be the facts, and answer the 4th issue ‘No,’ then I charge you that would be a breach of the contract on the part of Mr. Eerguson, and if you find by the greater weight of the evidence it would be your duty to answer the 7th issue ‘Yes.’ If you fail to so find it would be your duty to answer that issue ‘No.’ ”
We think that the charge as to the greater weight of the evidence on the different issues is correct. The charge of the able and learned judge in the court below comprised 29 pages. Taking same as a whole, if there was error, it was harmless. On the whole record we see no prejudicial or reversible error, and think that substantial justice has been had between the parties to the litigation.
No error.