Falkner v. Pilcher.

Walker, J., after stating the case. It may be conceded as a general proposition that a party cannot complain because a particular issue was not submitted to the jury unless he tendered it, but the rule is subject to this qualification, that the issues submitted must in themselves be sufficient to dispose of the controversy and to enable the Court to proceed to judgment, for in that respect the duty of the Court to submit issues is mandatory. Tucker v. Satterthwaite, 120 N. C., 118; Burton v. Mfg. Co., 132 N. C., 17. It was cer *451 tainly not incumbent on the.plaintiff to tender tbe issue Avhen tbe Court bad already announced at tbe outset, that it would not submit it, nor to offer evidence in support of sucb an issue. Davidson v. Gifford, 100 N. C., 18. In this case tbe plaintiff alleged distinctly in tbe summons a cause of action against defendant bank as well as one against Pilcber. Tbe justice’s return to tbe Court also shows that sucb a cause of action was alleged, and it further appears therein that tbe bank denied its liability. So that here was an issue squarely made between tbe plaintiff and tbe bank as to tbe alleged breach of tbe contract to sell tbe plaintiff sound corn. Tbe appeal of tbe bank brought to tbe Superior Court for trial, not only tbe issue as to tbe ownership of tbe corn, but also tbe issue as to tbe bank’s liability for breach of tbe contract, for the trial was de novo and therefore embraced all litigated matters pending between tbe plaintiff and tbe bank. When tbe Court, in tbe beginning, refused to submit an issue as to tbe breach of the contract, tbe plaintiff excepted, and when tbe evidence bad been introduced and tbe Court undertook to settle tbe issues, tbe plaintiff again excepted to tbe submission of tbe single issue as to the ownership of tbe corn and to tbe exclusion of any other issue. We have seen that all material issues must be submitted unless waived. Gordon v. Collett, 102 N. C., 532. How has tbe plaintiff waived his right to have tbe issue submitted ? At every turn be has insisted upon it. It was surely not necessary to make a formal tender of tbe issue when tbe Court bad positively ruled that it would not submit it. It would have been indecorous to do so. Again, the issues submitted must present tbe material facts in controversy, and they must, when answered, be sufficient to enable tbe Court to proceed to judgment and must also support the judgment rendered. Vaughan v. Parker, 112 N. C., 96; Paper Co. v. Pub. Co., 115 N. C., *452 147; Hatcher v. Dabbs, 133 N C., 239; Pearce v. Fisher, Ibid., 333. Tbe jury have found that tbe bank is tbe owner of the corn, but bow can tbe Court upon this finding, wben considered with reference to tbe case made by tbe pleadings, proceed to judgment? Tbe issue as to tbe ownership of tbe corn was ancillary to tbe main issue in tbe case as to liability, and was necessary only to determine whether, if tbe liability was established, it could be enforced by a condemnation of tbe corn or its proceeds, tbe defendant being a nonresident and tbe property having been attached in order to give tbe Court jurisdiction, and to secure tbe payment of any judgment recovered. Fisher v. Ins. Co., 136 N. C., 217. If tbe bank is liable to the plaintiff and is tbe owner of tbe corn, tbe latter can be .applied to tbe satisfaction of that liability. If tbe bank is liable to tbe plaintiff but is not tbe owner of tbe corn, tbe latter of course cannot be so applied. Tbe liability is therefore tbe principal question involved and tbe Court cannot give judgment upon tbe verdict as it now stands. It must be supplemented by another finding as to tbe liability of tbe bank for a breach of tbe contract alleged in the pleadings, or, more correctly speaking, in tbe summons and the return of tbe justice, and tbe case .will therefore be remanded with direction to submit an issue or issues presenting that question. Tbe verdict upon the issue as to ownership of tbe corn will not be disturbed. If tbe jury find for tbe plaintiff upon tbe new issue, be will be entitled to judgment and to have the corn or its proceeds applied to tbe payment of tbe amount so found to be due, otherwise tbe bank will be entitled to tbe judgment. Error.