Brown v. Catawba Lumber Co.

Avery, J.: The plaintiff brought suit to recover for a breach by the defendant of a mutual agreement theretofore made between them, by the terms of which the defendant *295 was to pay the plaintiff, as bandsawyer at its mill according to the number of feet of boards sawed per day, $4.00 if the product should be 35,000 feet per da^, $3.00 if not more than'30,000, and $2.50 if not more than 25,000 feet, and assured the' plaintiff that it had on hand over live million feet of logs, and that if the mill should be speeded up to its full capacity it would enable the plaintiff to earn $4.00 per day, which of course involved producing 35,000 feet of boards. When the plaintiff arrived and preferred to carry out his agreement, he was told by the defendant’s manager that the company had no logs there that day and an offer first of $1.50 per day and subsequently of $2.00 per day was made plaintiff till a new supply of logs could be floated down the river. Leaving out of view for the present the question whether the contract was subsequently waived by the plaintiff, it is certain that at this stage the defendant was guilty of a breach of it, as it then stood, in failing to furnish the logs and give the plaintiff the opportunity to show his shill and proficiency as a sawyer, by turning off the maximum number of feet in contemplation of the parties when the agreement was made. But there was no issue directly involving the question whether such a breach had been committed. The first was as follows. “Did the defendant, on or about June 5th, 1894, contract and agree to give plaintiff employment as a band-sawyer ?” To this inquiry, which was too indefinite to determine the specific terms, the court instructed the jury to respond in the affirmative, because both parties testified that there was an agreement made by the telegrams and the letter introduced in evidence. The second issue was as follows: “Did the defendant wrongfully violate such contract, the plaintiff himself being in no default?” The plaintiff’s counsel contended that the court erred in inserting in the second issue the qualifying *296 words “the plaintiff himself being in no default,” and that two issues ought to have been submitted to the jury, the one involving the inquiry whether the plaintiff had been guilty of a breach of the agreement, and the other raising the question whether there had been a waiver. It. was contended that there was an admitted breach by the plaintiff and that the fact should have been distinctly and separately found, but that at all events the two questions should not have been confused in one issue so as possibly to mislead the jury. When the jury responded “No” to this issue with a double aspect, did they mean to answer in the negative to the inquiry whether the plaintiff had been without fault? Or, did they mean to find that the defendant had been guilty of no breech of contract ? The defendant had failed to comply with, his contract in the first instance and it would seem that the court might have so told them with the same propriety that he instructed them that there had been, according to any view of the evidence, a contract made. The well established rule is that an inconsistent verdict, or one that in connection with the pleadings requires explanation to make it harmonize completely with the pleadings and evidence and support a judgment will be set aside, if it is too late to have it reformed by the jury. Allen v. Sallinger, 105 N. C., 339: Turrentine v. Railroad, 92 N. C., 612; Porter v. Railroad, 97 N. C., 66; Mitchell v. Brown, 88 N. C., 156. If the jury intended to find in response to this issue that the defendant d d not violate its contract, the finding was in conflict with any aspect of the evidence including the testimony of the defendant’s agent Whiting, and the plaintiff had just ground to complain when the opportunity was given to pass upon that question and specially *297 in this mixed issue. If, being misled and confused by the language, the jury meant to declare that the plaintiff had been in no default, then it is plain that if the opportunity had been afforded them to give intelligible expression through the issue to their true findings of fact, the plaintiff would have been entitled to a judgment. This being an executory contract and not performed in whole or in part by either, the parties might without a new consideration, other than the mutual acquittance of each other from the old promise, substitute a new agreement for it. Clark on Contracts, p. 13T. If one person agrees to render service to another at a stipulated price the contract may be discharged by simple agreement at any time before the performance of any service or the payment of money under its terms. But after the performance of any service or the payment of any part of the promised price the contract can be discharged only by a promise either under seal or supported by a consideration. Clark on Contracts, p. 609. But, while we concede that such is the law without citation of numerous authorities adduced -by counsel in support of the principle, it must be recollected that the testimony was conflicting upon this point1. If the plaintiff was believed, he did not agree to waive the orginal agreement till the defendant should get an additional supply of logs, and it could be abrogated only by mutual consent. If the jury gave credit to Whiting, the defendant’s agent, there was a mutual understanding that a new arrangement should be substituted for it. It being clearly possible that the jury might have been misled and the issue with the response not being clear or intelligible, we think it was the duty of the judge to have set aside the verdict so that a new trial could be had upon issues that would enable the court to see plainly that they had understood and discharged their duty and found a verdict clearly *298 entitling one of the parties to a judgment. ¥e think there was error which entitled the plaintiff to a new trial. New Trial.