Spinks v. . Ferebee, Mayor

Clarkson, J. We think the main assignment of error of the defendants, Ludlow Engineers, Inc., and J. L. Ludlow, relates to the refusal of the court below to nonsuit the plaintiff at the close of all the evidence. The issues tendered by them are in support of this contention. The complaint, although alleging a cause of action against the town of Andrews, by fair and reasonable interpretation, also alleges a cause of action against Ludlow Engineers, Inc., and J. L. Ludlow. When the town of Andrews went out of the action by nonsuit (see C. S., 2831-2960, certain restrictions upon municipal contracts), it did not necessarily carry the Ludlow Engineers, Inc., and J. L. Ludlow. We think, from a careful inspection of the record, that there was sufficient allegations in the complaint and evidence to support the issues tendered by the court below. *277 The charge of the court below is not in the record, the presumption of law is that it was correct, and the court charged the law in accordance with the evidence. The evidence of plaintiff tended to show that Ludlow Engineers, Inc., and J. L. Ludlow, its general manager, supplanted the plaintiff; that the plaintiff originated the business with the town of Andrews and took Ludlow Engineers, Inc., and J. L. Ludlow in with him. J. D. Spinks testified: “I suggested to them in the conference (board of commissioners of town of Andrews) that Ludlow Engineers, Inc., and I would do this work jointly if they would join me in the enterprise ; they were agreeable to it. I left next morning for Winston-Salem and went to see Mr. Ludlow as soon as I got back, and Mr. Justin, and discussed my visit to Andrews. We agreed to divide the profits and operating expenses equally; we agreed to go into this matter jointly and divide the profits, that is deduct the expenses, and divide the profits 50-50. We agreed to bear the expenses equally.” Joel D. Justin, hydroelectric engineer for Ludlow Engineers, Inc., was sent to Andrews and closed the job with the town of Andrews. Telegram from Andrews, N. C., 5 February, 1923, to J. D. Spinks: “Job closed, including contract for engineering, if work goes ahead,” etc. 5 February, 1923, Justin to Spinks: “As per my wire we closed contract tonight,” etc. 7 February, 1923, Justin to Spinks: “In recent letter I stated that I would mail contract to you. I am unable to do this as they have placed drawing of the formal contract in the hands of a local attorney. ... At the present rate it will be two days before he gets it finished. The phraseology that he argues about does not amount to anything, but I do not propose to let him put anything over. However, I will bring signed contract in with me without doubt as the whole thing has been agreed to in substance.” Contract was dated 10 February, 1923, by and between town of Andrews, N. C., of first part, and J. D. Spinks, of county of Forsyth and State of North Carolina, and the Ludlow Engineers, Inc., etc., of the second part. The original contract was changed — April inserted for February and February was marked out, and the name of J. D. Spinks marked out. In the attestation clause the name of J. D. Spinks was marked out. This contract originally dated 10 February, 1923, with February and Spinks marked out, was signed on 10 April, 1923, “The Ludlow Engineers, Inc. (Seal), by J. L. Ludlow, Prest.” On 27 April, 1923, Percy B. Ferebee, mayor, wrote Spinks, in answer to his letter, as follows: “Mr. Ludlow, when he met with us, stated that as you were not at all familiar with hydro-electric work, and as it would be they who would take the responsibility of the work, that he was going to ask the board to make the contract to the Ludlow Engineers, Inc., without mention of your name; that the matter was broughtjn his *278 attention by you, and as you advised him that you had the job, or practically had it, he would not make a competitive bid. He further stated that the two of you had a worlcing agreement where you were to work jointly, and that he would adjust the matter to your entire satisfaction.” The Ludlow Engineers, Inc., and J. L. Ludlow, defendants, denied any supplanting of Spinks, and alleged that the town of Andrews gave the contract to the Ludlow Engineers, Inc., and the plaintiff had no interest in it; that plaintiff was paid in full for preliminary survey. The evidence introduced on both sides showed that the contest waged around the issues submitted. The pleadings, liberally construed with a view to substantial justice between the parties, permitted the issues submitted by the court. They embodied proper inquiries as to all essential matters or determinative facts of the controversy. The complaining defendants fully understood plaintiff’s cause of action and were in no way misled. The case was tried upon its merits. No substantial rights of defendants were in any way affected by a liberal construction of the pleadings or the issues submitted. It was said, in speaking to the question in Sewing Machine Co. v. Burger, 181 N. C., at p. 247: “One of the most important purposes of the adoption of The Code system of pleading was to enable parties to determine and settle their differences in one action. The law favors the ending of litigation, and frowns upon the multiplicity of suits.” The court below, under C. S., 547, had, under certain circumstances, a right to.allow plaintiff to amend; so has this Court, under C. S., 1414, but we think, under the pleadings, liberally construed, it was not necessary. Jones v. Mial, 82 N. C., at p. 257; Ricks v. Brooks, 179 N. C., p. 204; Killian v. Hanna, ante, p. 17; S. v. McCanless, ante, 200. In this Court we cannot pass on the facts. ¥e can only review decisions of the court below “upon any matter of law or legal inference.” The jury below has found the issues in the plaintiff’s favor. From a careful review of the record and the briefs, we can find in law No error.