Turnage v. McLawhon

DeviN, J.

It was admitted that the defendant signed a contract empowering plaintiff to sell his farm of 242 acres for the net price of $32,000, plus $10,000 for certain personal property thereon, plaintiff to have for bis services in procuring a purchaser all that should be obtained over the stated price. The contract signed by defendant contained no warranty of title or against encumbrances.

The defendant was and is a married man living with bis wife, and this fact was known to the plaintiff. Defendant’s wife did not sign the contract. Thereafter plaintiff procured a purchaser for the land at the price of $35,000, and defendant without the joinder of bis wife signed a letter to the prospective purchaser confirming the sale. The defendant’s wife refused to sign the deed, and the purchaser, in view of the wife’s inchoate right of dower in the land remaining unimpaired, declined to accept the deed without her signature.

The defendant testified be stood ready, able and willing to execute deed to the land to the plaintiff or to the purchaser for the price agreed, and bad so advised the plaintiff; that the plaintiff knew at the time be obtained the agreement of the purchaser to buy that defendant’s wife would not sign the deed, and be also offered to show plaintiff knew that purchaser would not accept deed without her signature.

It is apparent that the single issue submitted to the jury was not determinative of the case. It did not afford defendant opportunity to present bis contentions based upon the evidence offered. It is essential in the trial of civil action by jury that the issues submitted shall embrace all material questions in controversy, and that each party have opportunity to present fairly and fully bis contentions of law and fact. Hatcher v. Dabbs, 133 N.C. 239 , 45 S.E. 562 ; Potato Co. v. Jeanette, 174 N.C. 236 , 93 S.E. 795 ; Colt Co. v. Barber, 205 N.C. 170 , 86 S.E. 1036 ; Lewis v. Hunter, 212 N.C. 504 , 193 S.E. 814 ; Griffin v. Ins. Co., 225 N.C. 684 , 36 S.E. 2d 225 ; Whiteman v. Transportation Co., 231 N.C. 701 , 58 S.E. 2d 752 . the issues submitted, together with the answers thereto, must be sufficient to support a judgment disposing of the whole case. Griffin v. Ins. Co., supra.

There was error in entering judgment on a verdict which did not determine all the material facts, and a new trial is in order.

As there must be a trial de novo, it is unnecessary to consider the other exceptions noted by defendant and brought forward in bis assignments of error.

New trial.