Mesimore v. Palmer

RodmaN, J. Plaintiffs’ first assignment of error is to the exclusion of evidence as to the value of the demised premises. We are unable to perceive any relevancy which the proffered testimony could have to the issues. Plaintiffs assert that it was relevant and material in showing the nature and extent of the breach. We do not agree, but if it should be conceded, the answer is that plaintiffs, after considerable maneuvering, selected the field of battle. That field was waiver and not denial of the breach. Hence evidence offered to show there was no breach is irrelevant. Plaintiff Murry Mesimore testified that a controversy developed between him and Abernethy late in 1954 or early in 1955. Abernethy had said he was going to quit farming. Plaintiff employed counsel to represent him in the controversy with Abernethy. The attorney so employed conferred in July 1955 with defendant Palmer. The asserted agreement to waive past defaults is alleged to have occurred in that conversation. Plaintiffs’ second assignment of error is composed of exceptions to the exclusion of evidence relating to the controversy between plaintiff and Abernethy and efforts to settle that controversy. The evidence obj ected to and excluded was either later admitted or was not material to the issue of waiver. Litigation was pending in Mecklenburg County between Mesimore and Abernethy. Basically the evidence offered and excluded consisted of letters between counsel in that suit in which offers and counteroffers of settlement were made. There is no reference to lessors, defendants in this action, until a letter of 10 September 1955 when counsel for plaintiff Mesimore wrote counsel for Abernethy agreeing to settle that litigation for |4,500 but conditioning his offer as follows: [491] “(1) That the case will be continued for a period of ninety days so that Mr. Mesimore can make a settlement of $4500.00. “ (2) The payment of $4500.00 is conditioned expressly upon satisfactory arrangements with Palmer and his two associates, Patterson and Cook, for the contract between them, on one side, and Abernathy and Mesimore on the other side to be placed back in full force and effect, for if they, Palmer, Patterson and Cook, refuse to revive the contract, and since there has been a violation of the same, that is, a default by Abernathy and Mesimore in the payment of the installments, neither Mesimore nor Abernathy, in legal contemplation, would probably have any further interest in the realty, or at least it would be very difficult for Abernathy and/or Mesimore to require conveyance of the land even though all the conditions and terms of the contract were complied with at this time. In other words, Mesimore is not going to pay $4500.00, and by a lawsuit, the outcome of which is very doubtful would be in his favor.” In a succeeding paragraph of that letter counsel for Mesimore reiterates his statement that his agreement to pay the $4500 is conditioned upon his being able to effectuate a satisfactory settlement with defendant lessors. We find nothing in the evidence excluded which might lead the jury to conclude that defendants had waived the payment of the rent and other obligations of lessees. If error be conceded, it is assuredly harmless. Harmless error is not sufficient. Johnson v. Heath, 240 N.C. 255, 81 S.E. 2d 657. Plaintiffs’ third assignment of error relates to the refusal of the court to submit an issue as to the sufficiency of the notice of 22 August 1955 to meet the terms of the lease in declaring a default. The original complaint alleged that lessees were notified in August that lessors had terminated the lease because of asserted defaults when in truth and in fact lessees had not defaulted. The answer alleged that due notice of termination was given 22 August 1955 and alleged in detail the manner in which lessees had failed to comply. Plaintiffs replied, admitting that lessees had not complied with their obligations under the contract. They then asserted as a basis for recovery that lessors had, in July 1955, waived any rights they might have to declare a default under the contract for “arrearities” and partial non performance by lessees. The reply thus in effect became the complaint. The issues arose on allegations of waiver of right to declare a forfeiture and denial of any agreement to waive. There is no allegation that lessors waived any breach occurring after July 1955. On the contrary, the allegation is expressly limited to July 1955 and prior thereto. The pleadings determine the issues, and the trial must be limited to the matters put in dispute by the pleadings. Bowen v. Darden, 233 N.C. 443, 64 S.E. 2d 285; Andrews [492] v. Bruton, 242 N.C. 93, 86 S.E. 2d 786. The issues which the court submitted to the jury were proper for a determination of the factual dispute. The case was tried upon the theory which plaintiffs selected. No exception was taken to the charge of the court. The jury has found the facts adverse to plaintiffs’ contention. The motions to set aside the verdict and for a new trial are formal. There is No error. JOHNSON, J., not sitting.