McKay v. McNair Investment Co.

'W'iNBORNE, J. This is the question: Does the statute, Gr. S., 1-510, authorize the rendition of the judgment from which this appeal is taken ? The answer is “Yes.” Such answer finds support in decisions of this Court. Parker v. Bledsoe, 87 N. C., 221, and Fertilizer Co. v. Trading Co., 203 N. C., 261, 165 S. E., 694. The statute, Gr. S., 1-510, provides that “whenever the answer of the defendant expressly, or by not denying, admits a part of the plaintiff’s claim to be just, the judge, on motion, may order the defendant to satisfy that part of the claim, and may enforce the order as it enforces a judgment or provisional remedy.” *292 In Fertilizer Co. v. Trading Co., supra, this Court said: “In Parker v. Bledsoe, 87 N. C., 221, on facts closely akin to those here appearing, an order was entered which directed that the plaintiff recover of the defendants the amount admitted to be due and retained the action for further hearing on the balance of plaintiff’s claim. This was the procedure followed in the instant case. The order is authorized by the statute.” And this pertinent treatment of the subject appears in 46 C. J. S., 322, Judgments, Sec. 185, subsection (b), “At common law and in the absence of statute or court rule to the contrary, plaintiff has no right to enter judgment for the part admitted, and then to proceed to trial for the balance of his claim; but by statute in many jurisdictions judgment may be entered before trial, for the part admitted and a trial had for the part disputed. Under this class of statutes two judgments may be rendered in the same case, both for plaintiff, or one for plaintiff and one for defendant, according to the result of the trial of the controverted portion of plaintiff’s claim.” Simpson v. C. P. Cox Corp., 167 Wash., 34, 8 P. (2d), 424. Furthermore, the same authority states that, “Where defendant has admitted a part of the claim to be due, and then proceeds under different statutory provision to offer to confess judgment on condition that the judgment be in full of the demands against him, such offer does not affect the right of plaintiff to have judgment entered for the part admitted in accordance with the first mentioned statutory provision.” See also Phenix Furniture Co. v. Daggett, 145 S. C., 357, 143 S. E., 220, a decision based on statute almost identical to our statute, G. S., 1-510. As we read the pleadings in the present action, the matters in difference between plaintiff and defendant relate to the terms of the contract in reference to purchase, caring for and sale of the same land. Those differences in the main are: (1) Whether the contract was bipartite, between plaintiff and defendant, or tripartite, between plaintiff, A. E. Jones, and defendant, and (2) whether defendant was to receive interest on moneys advanced. Defendant’s answer is on the theory that the contract was tripartite, and that it was to receive interest on the moneys advanced. And on this basis defendant admits that plaintiff is entitled to $4,910.25, the amount for which judgment is rendered. In the face of this admission of the amount justly due plaintiff in accordance with its own version of the contract, defendant may not defeat the purpose of the statute, Gr. S., 1-510, by undertaking to make a tender under Gr. S., 1-541. The judgment below is Affirmed.