Drennan v. . Wilkes , 179 N.C. 512 ( 1920 )

This is an action to compel the specific performance of a contract to convey a tract of land.

It is contended in this Court that the issues are insufficient to support the judgment. As we understand the case, the terms of the contract are not in dispute. It is admitted in the answer that defendant did contract and agree with plaintiff to sell him the lands for the sum of $1,550. It is alleged in the answer that the plaintiff failed to comply with the agreement. But whatever the terms of the contract were, the jury have found that the plaintiff complied with its terms.

Under this issue it was open to both parties to introduce evidence to prove the terms of the contract, as well as to whether they were complied with by plaintiff.

The form of issues is of little of consequence if the material facts at issue are clearly presented by them. Paper Co. v. Chronicle, 115 N.C. 147.

The discretion of the judge in settling issues will not be reviewed by us if under the issues presented the parties have opportunity to offer evidence upon every material phase of their contentions. Redmond v.Mullenax, 113 N.C. 505.

The court was not compelled to submit to the jury an issue as to whether the defendant did contract to sell the land to plaintiff, for that was admitted in the answer, and therefore no such issue was raised by the pleadings, and only issues should be submitted that are raised by the pleadings. The only dispute related to the terms of the contract, and as to whether the plaintiff complied with them. The issues submitted cover every issue raised by the pleadings, and when construed with reference to the admissions in the answer are amply sufficient to support the judgment.

If defendant was dissatisfied with the form of the issues, he should have excepted and submitted other issues.

We find in the record no issues tendered by defendant, and no exception to those submitted, and no assignment of error relating thereto.

Where an issue involved by the pleadings was not tendered, and the issues submitted were not objected to on the trial, a party in such default cannot complain for the first time in this Court. Maxwell v. McIver,113 N.C. 288; Porter v. R. R., 97 N.C. 66; Clements v. Rogers, 95 N.C. 248.

We think this controversy one of fact almost exclusively, and that it has been settled by the verdict of the jury. There is only one assignment of error relating to the evidence, and two to the charge, and we think they are without merit and need not be discussed. The controversy was put to the jury clearly and fairly.

No error.