Dixson v. C. E. Johnson Realty Co.

*357 Per Curiam. This action has heretofore been before this Court. 204 N. 0., 521. At the close of plaintiff’s evidence and at the close of all the evidence (C. S., 567) the defendant made motions in the court below for judgment as in case of nonsuit. The court below refused these motions, and in tbis we can see no error. We think tbe plaintiff’s evidence on tbe trial in tbe court below substantially tbe same as was set forth in tbe former appeal. A decision by tbe Supreme Court on a prior appeal constitutes tbe law of tbe case, both in subsequent proceedings in tbe trial court and on a subsequent appeal. In tbe previous opinion we quoted from Alston v. Connell, 140 N. C., 485 (491-2), and we quote in part again as follows: “Tbe extension having been given at Thomas Connell’s request and for bis convenience, when tbe extended agreement itself and all tbe circumstances clearly implied that be regarded it as a valid and binding contract, and that be intended to live up to its terms, tbe law will not permit him now to repudiate its obligations, invoke for bis protection tbe statute of frauds and defeat tbe plaintiff’s recovery, who bad forborne a timely performance by reason of Thomas Connell’s request and in reasonable reliance on bis assurance. Tbis position is in accord with sound principles of justice and is well sustained by authority.” It is too technical to contend that tbe pleadings with tbe issues and charge of tbe court below are insufficient to support tbe judgment and are contradictory. We do not think there is such a variance between tbe allegations, proof, and issues that could be held as prejudicial or reversible error. Tbe issues were largely in tbe discretion of tbe court. We think there was plenary evidence, direct and circumstantial, of tbe authority of Biggs, who made tbe extension of forbearance, and tbis with tbe knowledge and acquiescence of defendant. Tbe underlying principle of law involved in tbis case is embodied in tbe broad idea of justice that where one forbears from performing an act at tbe request of and for tbe benefit of another, tbe latter will be precluded from later taking tbe position that tbe former bas lost tbe protection of bis rights by such forbearance. Defendant’s business covered some territory — “We sell tbe Earth.” In tbe judgment of tbe court below, we find No error.