Wilson v. . Hood, Comr. of Banks

179 S.E. 660, 208 N.C. 200, 1935 N.C. LEXIS 360

Opinion

Stacy, O. J.

It was conceded on the argument that, upon the record as presented, the plea of payment, if established, and not that of estop-pel, constitutes the only valid defense to plaintiff’s claim. Annotation: 25 A. L. E., 170. As this was not passed upon in the court below, and the evidence directed to- the point is nebulous, the case will be remanded for further proceedings.

Error in dismissing the action upon the plea of estoppel having been confessed, necessarily works a reversal of the present judgment. An appeal ex necessitate follows the theory of the trial. Hargett v. Lee, 206 N. C., 536, 174 S. E., 498; Walker v. Burt, 182 N. C., 325, 109 S. E., 43; Shipp v. Stage Lines, 192 N. C., 475, 135 S. E., 339.

Eeversed.