Foy v. . Craven , 111 N.C. 129 ( 1892 )

The exception to the exclusion of evidence was not insisted upon here. The only point presented to us is whether the plaintiff would be entitled to recover for moving the material of the old bridge to Brice's Creek bridge, some distance below the point where the old Cleremont bridge was taken down and the new bridge erected by plaintiff.

The contention of the defendant is that there was a written contract between plaintiff and defendant for the building of the Cleremont bridge on Trent River where the old bridge stood, which contract provided for the building by plaintiff of the new bridge and the payment by defendant of $3,000 to plaintiff therefor, and that parol evidence was inadmissible to vary the terms of said written contract. The claim of plaintiff for taking down the old bridge and removing it to the lower Brice's Creek bridge, is entirely separate and independent of the written contract for the building of the Cleremont bridge. The first exception for the exclusion of testimony might have raised some question with regard to the written contract and its bearing upon (132) the necessary removal of the old bridge before the building of the new, but as we have said, this exception was not insisted upon.

The question we have now to consider, is whether the plaintiff could, in any view of the testimony, have recovered of defendant for the removal of the material of the old bridge to the lower Brice's Creek bridge. The testimony upon this point is that of the plaintiff, "that a large part of the timber of the old bridge was rafted and taken about four miles, to the defendant's bridge at Brice's Creek, and that to take down the old bridge and remove it to Brice's Creek was worth one-third as much as the contract price to build a new bridge." There is no allegation in the complaint, and there is no proof, that this service was performed at the request or for the benefit of defendant, or that defendant accepted or took benefit by the same. 1 A. E., 884 (note 2), 889. So, without passing upon the correctness of the opinion expressed by his Honor, we hold that upon the complaint and upon the evidence the plaintiff was not entitled to recover, and the judgment of nonsuit is

AFFIRMED.