Housing, Inc. v. Weaver , 52 N.C. App. 662 ( 1981 )

HILL, Judge.

We do not find it necessary to address the first issue raised by the appellant: Did the trial court err in failing and refusing to submit to the jury an issue as to defendant’s breach of contractual obligation to plaintiff? Serious doubt exists that the letter dated 21 April 1971 was anything more than a letter of intent. There exists sufficient vagueness to make it void and unenforceable. If there was a valid and binding contract under which the parties worked for a period of time, then the contract of sale and purchase of the project as outlined in the 27 April 1972 agreement was effective as a novation of the 21 April 1971 agreement and any working agreement resulting therefrom.

A novation precludes the assertion of any right under the original contract. Fowler v. Insurance Co., 256 N.C. 555, 124 S.E. 2d 520 (1962); Products Corporation v. Chestnutt, 252 N.C. 269, 113 S.E. 2d 587 (1960).

Under the 1972 contract, the Johnson interests offered to purchase all of Weaver’s right, title and interest in the Mid-East Regional Housing Project. The offer was accepted by the Weaver interests and consummated 14 July 1972 by the delivery of deed, notes and deed of trust, other necessary financing documents, and fulfillment of other obligations set out in the proposal. Johnson testified that the consideration of $212,500 over expenses was the result of negotiations between Weaver and himself. Payments were made beginning with the date of closing up to and including 3 October 1972. A total of $121,954.54 was paid. Suit was filed by plaintiff on 31 December 1973, one day before the due date on the notes. Over the almost one and one-half years following the date of the offer, payments were made and no complaints expressed by Johnson to Weaver.

The jury answered issues indicating that Weaver was under no duty to convey to Housing, Inc. title to the lands acquired by him through the options owned by Housing, Inc. Likewise, the jury answered an issue determining that Carl Johnson and Housing, Inc., were not acting under duress, coercion, or business compulsion at the time of the execution of the agreement dated 27 April 1972. It is apparent from the agreement and the acts of the parties that the second agreement rescinded the prior agreement and constituted a settlement between the parties for claims involving the project. Plaintiff’s first assignment of error is overruled.

Appellant next contends the trial judge erred in his instructions to the jury and that it is entitled to a new trial. We disagree. The reasoning set out in connection with the previous assignment of error applies equally here. Johnson argues the court erred in failing to charge on economic duress properly, citing the prior decision of this Court in this case. A careful reading of the charge as a whole reveals the trial judge instructed the jury to find for Johnson unless it determined that Weaver held title to the land in trust for the joint venture. Such an instruction would have included the question of duress. The jury verdict answered the issue. Weaver conveyed not only title to the real estate but all other interests to Johnson. The nature and quality of the title held by Weaver became moot as a result of conveyance. Plaintiffs second assignment of error is overruled.

Appellant next contends the trial judge erred in setting aside the verdict of the jury on the issue of damages and substituting his findings in lieu thereof upon which he entered judgment.

At the conclusion of the trial, the jury returned a verdict finding as a fact that (1) Weaver had no duty to convey to Housing, Inc., title to the lands acquired by him through the exercise of options owned by Housing, Inc.; and (2) that Housing, Inc., and Johnson were not acting under duress, coercion or business compulsion in executing the 27 April 1972 agreement and notes which were the basis of Weaver’s counterclaim. The jury also found the Weaver interests were not entitled to recover any amounts from the Johnson interests under the 27 April 1972 agreement (which was the basis for the notes) or otherwise. The trial judge adopted the verdict and entered judgment to the effect that neither party was entitled to recover from the other.

Defendant moved to set aside the verdict with respect to the issue of its damages and moved for judgment n.o.v. as to all issues, including damages, or to amend the judgment to include damages. In the alternative, defendant moved for a new trial limited to the issue of defendant’s damages or upon all the issues. Plaintiff also moved for judgment n.o.v. or alternatively for a new trial upon all issues. Thereafter, both parties submitted arguments to the trial judge, and some six months later, on 24 June 1980, the trial judge entered the order and judgment set forth in the facts above.

Approximately one month prior to the trial, plaintiff moved to sever for trial the issue of defendant’s liability to plaintiff from those of damages and defendant’s cross claim against Landin, Ltd. In stating its reason, plaintiff alleged:

If the Weaver defendants prevail on any of their defenses the damage issue will not be tried at all because there is no dispute as to what amount is due and owing on the notes, if they are valid. (Emphasis added.)

Likewise, in support of a motion in limine and motion to sever filed by plaintiff two weeks later, plaintiff stated:

There is no controversy with respect to the amount of damages Weaver would be entitled to recover upon the notes if Housing alone is, or Housing and Landin, are liable upon them. Therefore, the question of the amount of Weaver’s damage is not an issue.

The trial court entered a final pretrial order in which it severed defendant’s counterclaim against Landin for a subsequent trial. At that time both parties submitted proposed jury issues. Neither party included an issue for determining plaintiff’s liability to defendant or for determining the amount of the defendant’s damage.

Plaintiff admitted in its complaint that defendant was entitled to be reimbursed for working capital advances in the sum of $58,421.94. During the trial Johnson testified plaintiff still owed $26,667.00 on the working capital advances. At trial the unpaid promissory note for $122,500 was admitted into evidence. Johnson admitted he signed the note on behalf of Housing, Inc. and that he personally guaranteed the note. Both parties stipulated the due date as of 1 January 1974. On its face the interest rate was established at 8 1/8%. Plaintiff first raises the issue of interest allowed on the unpaid note after the award. No assignment of error was taken to the award of interest, and it is deemed abandoned. App. R. 10(c). The amount of the award of damages made by the trial judge was not in dispute and was certain as to terms.

Under G.S. 1A-1, Rule 59(a), the courts of this State have the authority to set aside a verdict as to one issue and order a new trial as to it while leaving the verdict for the remaining issues intact. Also see Hussey v. R.R., 183 N.C. 7, 110 S.E. 599 (1922).

If a verdict was returned, the judge may allow the judgment to stand or may set aside the judgment and either order a new trial or direct the entry of judgment as if the requested verdict had been directed. G.S. 1A-1, Rule 50(b)(1).

The trial court had the power to grant a new trial as to the issue of damages alone, but such a trial would be a waste of judicial resources because the stipulations of the parties, the undisputed evidence, and the plaintiffs admissions establish the amount of defendant’s damages as a matter of law. The trial court could have entered a directed verdict under the circumstances, or it could have waited for the jury verdict and thereafter stricken out the adverse answer to the issue and answered the issue itself. This the court elected to do. Our courts have long recognized the power of the courts to decide issues of damages where this area is undisputed. Whitley v. Redden, 276 N.C. 263, 171 S.E. 2d 894 (1970). This assignment of error is overruled.

We have examined the two remaining assignments of error brought forward by appellant. For the reasons set out above in reaching our decision, we find such assignments of error to be without merit in this case.

Affirmed.

Judges Martin (Robert M.) and Clark concur.