Hinnant v. . Boyette

CoNNOR, j. The issues submitted to the jury at the trial of this action arise upon the pleadings; answers to these issues would be determinative of plaintiff’s right to recover upon the cause of action alleged in the complaint. However, the controversy between the parties has been limited by the order of Sinclair, J., to which defendant did not except. Having failed to except to this order, defendant is deemed to have consented thereto; he is bound by its terms. Bryson v. R. R., 141 N. C., 594, 54 S. E., 434. Defendant, by the execution of the bond, availed himself of the provisions of the order, and thereby precluded the receiver, appointed by the court, upon plaintiff’s motion, from taking possession of the property. The property, by virtue of the order and the bond, remained in the possession of defendant and his son, Willie Boyette. Defendant agreed to pay such judgment as plaintiff might recover upon the trial, whether the jury should find that he was the purchaser, or whether the jury should find that his son was the purchaser. Defendant thus, in effect, stipulated that the issues to be submitted to and passed upon by the jury should involve only the amount which plaintiff was entitled to recover by judgment against either the defendant or his son. At the trial, by virtue of the order of Sinclair, J., the matter in controversy between the parties was the subject-matter of the contract, and not the parties thereto. Plaintiff contends that he sold and delivered all the articles included in the inventory attached to the complaint; defendant contends that plaintiff sold only such portion of the said articles as plaintiff has been paid for. Issues involving these contentions are the proper issues, under ■stipulation of the parties. Issues, substantially similar to the issues tendered by plaintiff, and refused upon objection of defendant, should be submitted to the jury. Leave was given plaintiff in the order of Sinclair, J., to make Willie Boyette a party defendant. He is at least a proper party, and should be made a defendant, prior to the trial of the action. For errors with respect to the issues, there must be a New trial.