Fleishman v. Burrowes , 198 N.C. 514 ( 1930 )

ClaRksoN, J.

Under tbe stipulation of counsel appearing in tbe record, we find tbe only question presented to us for our determination: “Is tbe legal effect of tbe deed from Fleishman and wife to Cumberland Savings and Trust Company, dated 18 January, 1928, and whether tbe plaintiff is estopped to claim tbe right to recover tbe fund of $2,500, held in escrow and deposited in Cumberland National Bank to tbe credit of R. H. Dye, Chas. G. Rose and R. W. Herring, on tbe date of tbe deed ?”

We do not think that plaintiff is estopped to maintain this action. It will be noted that tbe question asked Fleishman: “What was your understanding about tbe $2,500 put up? What was tbe agreement? Answer: Why, be offered to put up $2,500, and we will have a settlement as soon as we get this building straightened out; we would get our people together, our lawyers, and settle this matter up with me, to my satisfaction.”

If tbe question was confined to understanding, tbe assignment of error by defendant would prevail, but tbe question was more than understanding — what was the agreementf Overall Co. v. Holmes, 186 N. C., at pp. 431-32; 22 C. J., Evidence, at pp. 515, 516. Under our liberal practice and procedure, we do not think that plaintiff can be beld down to tbe technical position of defendant as to the allegations in the complaint of plaintiff, the reply sets out the agreement of the parties fully, and the court below had the discretion to permit plaintiff to file the reply. Sams v. Cochran, 188 N. C., at p. 733. From the view we take of this action, we see no new or novel proposition of law presented by the appeal. In the judgment of the court below we find

No error.