Goeckel v. Stokely

JOHNSON, J. The defendant’s assignments of error challenge the action of the trial court in (1) overruling his motion for judgment as of nonsuit, (2) charging the jury on the second issue, and (3) limiting the defendant’s counterclaim-recovery to $107.41. 1. The refusal to nonsuit. — The defendant takes the position that his letter of 7 February, 1951, to the plaintiff sets forth the terms of his offer of employment, and that the plaintiff after receiving the letter came to Charlotte and entered upon the work of the defendant. On these facts, the defendant contends the plaintiff accepted the terms of the employment as set out in the letter, and that since the asserted item of moving expense is nowhere mentioned in the letter, the plaintiff is precluded from recovering therefor. The defendant’s position is untenable. It fails to take into account (1) the plaintiff’s letter of reply dated 13 February, 1951, indicating that the matter of “expense of moving” was being left open for further discus *607 sion, and (2) plaintiff’s testimony that when tbe matter was discussed in ■Chicago tbe defendant verbally agreed to pay tbis item of expense. To constitute a valid contract tbe parties must assent to tbe same thing in tbe same sense, and their minds must meet as to all tbe terms. If any portion of tbe proposed terms is not settled, there is no agreement. Sprinkle v. Ponder, 233 N.C. 312, 64 S.E. 2d 171; Kirby v. Stokes County Board of Education, 230 N.C. 619, 55 S.E. 2d 322; Sides v. Tidwell, 216 N.C. 480, 5 S.E. 2d 316; Federal Reserve Bank v. Manufacturing Co., 213 N.C. 489, 196 S.E. 848; Croom v. Lumber Co., 182 N.C. 217, 108 S.E. 735; Wilson v. Lumber Co., 180 N.C. 271, 104 S.E. 531. And where correspondence or written memoranda is relied on to establish a contractual relation, if, from tbe language used, it appears that some term which either party desires to be in tbe contract is not included, requiring further treaty between tbe parties, there is no completed agreement. 12 Am. Jur., Contracts, Sec. 23. See also Richardson v. Storage Co., 223 N.C. 344, 26 S.E. 2d 897. Here it is manifest from plaintiff’s reply letter of 13 February that tbe minds of tbe parties did not meet on tbe proposals set out in tbe defendant’s letter of 7 February and that further treaty between tbe parties was necessary in respect to whether tbe defendant was to pay tbe plaintiff’s expense of moving. And tbe evidence pro and con as to whether tbis item was made a part of tbe employment contract as finally consummated presented a clear-cut issue of fact for tbe jury. 2. The charge on the second issue. — Tbe defendant (1) points to tbe fact that tbe plaintiff has declared on a special contract whereby tbe defendant allegedly agreed to pay plaintiff’s moving expense, and (2) urges that all tbe evidence tends to show tbe amount of tbis expense was $580.62. Upon tbis theory of tbe trial, so fixed by tbe pleadings and proofs, the defendant contends tbe plaintiff was entitled to recover all or none of tbis amount and that tbe trial court should have so instructed tbe jury. Tbe defendant therefore contends it was error for tbe trial court to charge tbe jury to find and determine tbe amount, if any, tbe plaintiff is entitled to recover as “tbe reasonable amount of tbe expense necessarily incurred in connection with tbe removal of tbe plaintiff’s household furniture and equipment from Bogota to Charlotte.” Conceding, without deciding, that tbe court should have instructed tbe jury in accordance with tbe defendant’s contention, it is not perceived that tbe failure to so charge was prejudicial to tbe defendant. It would seem that tbe error, if any, was helpful to tbe defendant, as shown by tbe verdict for tbe lesser sum of $342.75. 3. Limiting the defendant’s counterclaim-recovery. — Here tbe defendant assigns as error tbe failure of tbe trial court to submit to tbe jury tbe issue raised by defendant’s second counterclaim in which be seeks to *608 recover for losses and damage allegedly caused by the plaintiff’s turning in purported orders which in fact were not given by the customers. However, an examination of the record discloses no evidence upon which to predicate recovery on this counterclaim. Therefore, the exceptions directed to the failure of the court to charge on the theory of this counterclaim are without merit. The defendant further assigns as error the ruling of the court in excluding the transcript of the adverse examination of the defendant taken at the instance of the plaintiff. However, the transcript is not in the record, and we are unable to determine whether the defendant was prejudiced by its exclusion. Hence error has not been made to appear. Martin v. Currie, 230 N.C. 511, 53 S.E. 2d 447; Francis v. Francis, 223 N.C. 401, 26 S.E. 2d 907. The other exceptions to the exclusion of testimony appear to be without merit. The proffered testimony was properly excluded as hearsay. No error. Parkek, J., took no part in the consideration or decision of this case.