Russell v. Boice Hardwood Co.

200 N.C. 210

Opinion

Bee Cubiam.

The chief exception relied upon by the defendant is the instruction of the trial judge to the jury to the effect that the burden of proof on the third issue was upon the defendant. The third issue was submitted by reason of the fact that the defendant at the close of all the evidence requested permission to amend its answer so that the pleading would conform to the evidence offered at the trial. Hence the defendant was compelled to take the position that the written contract relied upon by it had been modified by a verbal agreement. Thus the burden was upon the defendant to show the modification contended for.

There are other exceptions, but none of them warrant the overthrow of the judgment.

No error.