Brown v. . Loftis

Winborne, J. Careful consideration of the assignments of error presented on this appeal fails to disclose error in the trial below. Appellant first challenges the correctness of the ruling of the court in refusing to grant his motions for judgment as in ease of nonsuit. In this connection, evidence offered by plaintiff, taken in the light most *764 favorable to him, tends to show: (1) An express oral contract as alleged in the complaint; (2) a compliance by him with the terms of the contract; and (3) a breach of the contract by defendant. On the other hand, the evidence for defendant tends to show that no such contract existed, and that if it did exist plaintiff failed to fulfill it, and that there is no breach of it shown. But, all in all, the evidence presents a clear-cut but sharply contested issue of fact for the jury. Appellant also excepts to certain portions of the charge as given with respect to the second, third and fourth issues, and upon such exceptions contends that the court failed “to instruct the jury to the effect that in no aspect of the case was the plaintiff entitled to a bonus payment, unless the ship was raised,” — in violation of provisions of G. S., 1-180. It is noted, however, that there is no exception in the record presenting the question of the failure of the court to charge as required by the statute, G. S., 1-180. Hence, argument unsupported by exception is insufficient to present the question, and will not be considered on appeal. See S. v. Britt, 225 N. C., 364, 34 S. E. (2d), 408, in opinion by Denny, J., where the authorities are assembled. The question may not be presented on exception to charge as given. However, if there were exception here presenting the question, it would seem to be untenable in the light of the charge given by the court. Appellant further assigns as error evidence, admitted over his objection, as to plaintiff's remuneration under other contracts on which he had worked before entering upon the work under the contract alleged in this action, and under contracts entered into after the completion of the work on the Gulfland. This testimony was admitted in response to cross-examination tending to impeach testimony of plaintiff. The record shows that plaintiff on direct examination testified that he told defendant “that seeing as how I was making about $250 a week with the Navy Salvage, I expected that much of him, etc.” The cross-examination of him tended to impeach the statement as to what he was making. Then in response thereto he was permitted to state on re-direct examination what he was making in similar work under other employment. In the light of this setting, the evidence was competent for the purpose for which it was admitted. See Jones v. Jones, 80 N. C., 246; Bowman v. Blankenship, 165 N. C., 519, 81 S. E., 746; Stansbury on North Carolina Evidence, section 50, p. 79. In the Jones case, Smith, C. J., used this pertinent expression: “In whatever way the credit of the witness may be impaired, it may be restored or strengthened by this or any other proper evidence tending to insure confidence in his veracity and in the truthfulness of his testimony.” All other assignments have been considered, and are found to be without merit, and require no further elaboration. Hence, in the judgment below we find No error.