Vandiford v. . Vandiford

2 S.E.2d 364, 215 N.C. 461, 1939 N.C. LEXIS 291

• Court: Supreme Court of North Carolina
• Decided: April 19, 1939
• Status: Published

Opinion

Stacy, C. J.

It is apparent from a perusal of tbe record that tbe last three issues were answered without regard to tbe pleadings, tbe evidence, tbe contentions of tbe parties, or tbe charge of tbe court. May-bap tbe jury undertook to compromise tbe case. Bartholomew v. Parrish, 186 N. C., 81, 118 S. E., 899; Gulley v. Raynor, 185 N. C., 96, 116 S. E., 171.

Tbe defendant contended from the evidence that tbe 7th issue should be answered in tbe sum of $16,348.40; while tbe plaintiff contended that it should be answered in tbe sum of $8,665.44. Tbe court instructed tbe jury to answer tbe issue accordingly as they should find tbe facts to be. Tbe answer is “Nothing.”

Tbe eigbtb issue was submitted under an instruction that it should be answered in the sum of $10,041.83, according to plaintiff’s evidence and contention, or $9,026.82 according to the defendant’s admission. It is answered “Nothing.”

The verdict is at variance with the pleadings, the evidence, and the theory of the trial. The defendants’ motion to set it aside should have been allowed. Daniel v. Belhaven, 189 N. C., 181, 126 S. E., 421; Nall v. McMath, 117 N. C., 183, 98 S. E., 374; McIntosh N. C. Prac. & Proc., 665. It is manifestly wanting in legal requirements. Daniel v. Belhaven, supra. It bears the earmarks of compromise. Watts v. Greenlee, 13 N. C., 87; Note, 134 A. S. R., 1061.

There are other exceptions appearing on the record worthy of consideration, especially those pertaining to the cross-examination of the defendant, but as they are not likely to arise on the further hearing, present rulings thereon will be omitted.

A careful perusal of the record engenders the thought that a venire de novo should be ordered. Kinney v. Beverley, 12 Va., 318. It is accordingly decreed.

Venire de novo.