Durant v. . Powell

ClaeKSON, J. Did the trial judge commit reversible error? We think not. This is the plaintiff’s only statement of the question involved. The cause of action instituted by plaintiff against defendants is bottomed on the following allegations in the complaint: “He performed overtime service for the defendants consisting of 2,124 hours, and for which the defendants are indebted to him at the rate of 71c per hour, amounting to a total of $1,508.04.” In answer to this the defendants say: “That the plaintiff was employed for a period of eight (8) hours service, said period under the terms and conditions of his employment, as prescribed by the agreement between Seaboard Air Line Railway Company and employees, relating to stationary engineers and firemen, which terms and conditions were communicated to the plaintiff and accepted by him, was to be spread over a period of twelve hours.” It appears in evidence that the reason why the “8 hours over a spread of 12” was adopted was on account of the deflation. As stated by a witness for defendant, “Business was dull in 1932, ’33 and ’34, cut down to 4 or 5 days a week. It was over that time that Lucius was working 8 hours over a spread of 12.” From the evidence of plaintiff himself, he understood the new contract made between himself and defendant S. A. L. Railway Company. He testified: “That is what it meant, that 8 hours over a spread of 12 was that you were to work, but spread it over 12, so as to get four hours off. *633 That is wbat be told me I was to do.” Under tbis agreement plaintiff continued to work and draw bis pay — $3.77 a day. No murmur or complaint from bim until tbis action was commenced. From the allegations of plaintiff’s complaint, we see no reversible error in the court below refusing to allow one of plaintiff’s witnesses to state whether certain rules and working regulations applied to the plaintiff during the period under consideration. Nor do we think wbat defendants’ witnesses testified to in regard to the application of such rules reversible error. "We think the rules as explained by defendants’ witnesses were substantially the rules as contended for by plaintiff, and there was no substantial variance. In fact, plaintiff entered into the contract with defendants knowing nothing about the so-called rules and working regulations. Tbis being the case, the matter was immaterial and could lend no light. Henley v. Holt, 214 N. C., 384 (387-8). A “contract” is an agreement upon sufficient consideration, to do or not to do a particular thing, resulting from the concurrence of minds of two or more persons, and its legal consequences are not dependent upon the impressions or understandings of one alone of the parties to it, but on what both agree. Overall Co. v. Holmes, 186 N. C., 428; Belk’s Department Store v. Ins. Co., 208 N. C., 267. A court cannot grant relief from a contract merely because it is a hard one. Forbes v. Mill Co., 195 N. C., 51. “A contract is the product of two or more consenting minds making a commitment about the same thing, binding on the parties at law or in equity. It is true that where there has been no meeting of the minds on the essentials of the treaty, no contract results. Lumber Co. v. Boushall, 168 N. C., 501.” Cheek v. R. R., 214 N. C., 152 (156). “An offer may invite an acceptance to be made by merely an affirmative answer, or by performing or refraining from performing a specified act, or may contain a choice of terms from which the offeree is given the power to make a selection in his acceptance.” Restatement of Law-Contracts, Amer. Law Inst., Vol. 1, sec. 29. The court below charged correctly the meaning of a contract. The plaintiff contended that “The trial judge committed error in charging the jury that acceptance of pay checks by the plaintiff estopped the plaintiff from asserting his claim for pay for overtime work.” "We cannot so hold. The agreement from the evidence, made by defendants and accepted by plaintiff, was thoroughly understood by the plaintiff. lie was sui juris, could read and write. He was receiving good wages — $3.77 a day. No doubt plaintiff, being a faithful employee of long standing defendants did not want him to lose his job and made the offer, which was accepted by plaintiff, that he could continue in the service on full-time *634 work “8 hours over a spread of 12.” It is undisputed in the record that plaintiff admitted that he received the twenty-four checks in evidence fr.om defendant. “Q. You know they contended that was all they owed you? Ans.: Yes, I took the checks, got the money and used it. . . . Q. You know that they were insisting that was all they owed you ? Ans.: That was all they claimed. I had some mental reservation that that was not right. There was no need to tell them anything about it.” In DeLoache v. DeLoache, 189 N. C., 394 (398), it is said: “In Moore v. Assurance Corp., 173 N. C., on page 538, Walker, J., says: ‘This Court has held in numerous eases that when on the face of the check is stated the purpose for which it is given, or the condition of the payment which it represents, the party to whom it is given or sent cannot accept and use it and afterwards repudiate the condition.’ Citing Kerr v. Sanders, supra (122 N. C., 635) ; Armstrong v. Lonon, 149 N. C., 434; Aydlett v. Brown, 153 N. C., 336. In the latter case, the Court says: ‘He will not be permitted to collect the check and repudiate the condition.’ . . . "When the plaintiff accepted the check with the statement written thereon that it was in full settlement and then cashed the check, he is bound thereby. Ore Co. v. Powers, 130 N. C., 152; Petit v. Woodlief, 115 N. C., 120; Cline v. Rudisill, 126 N. C., 525; Wittkowsky v. Baruch, 127 N. C., 315; Armstrong v. Lonon, supra; Drewry v. Davis, 151 N. C., 295; Supply Co. v. Watt, 181 N. C., 432; . . . Long v. Rockingham, 187 N. C., 199 (211).” . . . “Business transactions cannot be safely conducted upon secret reservations of mind that are totally inconsistent with the open acts.” Lawson v. Bank, 203 N. C., 368 (372), 75 A. L. R., 907-922. We see no error in the charge of the court below. It gave the contentions fairly to both sides, placed the burden of proof correctly, charged the law applicable to the facts and also charged the jury (to which exception and assignment of error was made by plaintiff which cannot be sustained) : “If you find from the evidence and by its greater weight, that the plaintiff accepted the checks of the defendants, which have been offered in evidence, containing the recitals in each check thereof, that it was in full for services rendered during the half month just previous to the date of each check, and that he knew that at the time he received said checks that the defendants were offering them in full payment for his services, and that the defendants contended then that the amounts of the said several checks were the correct amounts due the plaintiff, and that at the time he cashed said checks, he had a reservation in his mind, which he did not express to the defendants, that he would use the proceeds of said checks, and later make a claim for additional pay for his services, then the law does not permit such mental *635 reservations to invalidate the condition expressed in the face of the checks, and the plaintiff would not be entitled to recover herein, and if you so find, you will answer the issue Nothing.’ That is to say, gentlemen of the jury, if the plaintiff at the time accepted those checks, and accepted them in full payment of the services that he had rendered to the company, knowing all the conditions, and he accepted them at that time, that would make a settlement in full; the law saying that was a contract entered into between the defendant and the plaintiff, and he would be bound by it.” In the judgment of the court below, we can find No error.