Tarkington v. . Criffield

124 S.E. 129, 188 N.C. 140, 1924 N.C. LEXIS 24

Opinion

Pee Cueiam.

The charge of the court as to the application of the statute of frauds is fully supported by our decisions on the subject, and appellant’s exception to the validity of the trial on that ground must be overruled. Taylor v. Lee, 187 N. C., 393; Whitehurst v. Padgett, 157 N. C., 424; Peele v. Powell, 156 N. C., 553; Sheppard v. Newton, 139 N. C., 533.

The Court is of opinion, however, that prejudicial error was committed in charging the jury that if they accepted plaintiff’s version of the matter the amount would be $285.63. All of these goods were sold or advanced to the two tenants, Arthur and Evans, in the year 1920; and, putting aside a slight discrepancy of a few cents, this $285.63 includes and contains all of the claims, to wit, the $149.66 to Arthur, the $45.49 to Evans, and the $90.00 on the written orders. Plaintiff himself testified that in the original arrangement the amounts to be advanced to these tenants for the year was not to exceed $150.00 to Arthur and $50.00 to Evans — $200.00. And his further testimony leaves it uncertain whether this restriction extended to the entire amount sold or advanced to these parties during the year, or whether the $90.00 advanced on the written orders was in addition to and unaffected by the restriction. Being ambiguous, it is for the jury to determine, even on plaintiff’s own evidence, whether the $90.00 advanced on the written order is subject to the restriction stated.

The cause, therefore, must be referred to another jury, and if they again find with the plaintiff as to the promise to pay, the question of the amount will be also submitted to them for decision.

New trial.