Britton v. Gabriel

162 S.E.2d 686 (1968)

2 N.C. App. 213

Marion N. BRITTON and wife, Odessa R. Britton v. Zetta K. GABRIEL.

No. 68SC87.

Court of Appeals of North Carolina.

August 14, 1968.

Certiorari Denied October 8, 1968.

*687 Booker & Sapp, by Robert H. Sapp, Winston-Salem, for plaintiffs appellees.

*688 Deal, Hutchins & Minor, by Fred S. Hutchins, Winston-Salem, for defendant appellant.

BROCK, Judge.

The defendant brings forward seven assignments of error. The first, third, fifth, sixth and seventh all relate to the refusal of the Court to set aside the verdict and grant a new trial. These assignments of error will not be discussed because they will be disposed of by disposition of the remaining assignments of error.

The defendant's second assignment of error is to the refusal of the Court to order a compulsory reference. The only grounds that might have existed under G.S. § 1-189 for the Court to order a compulsory reference would be that provided under Section 1 relating to the examination of a long account on either side. The record discloses that there is a very slight difference between the contentions of the parties as to what had been paid, and the defendant has failed to show in what way the failure to order a compulsory reference has been prejudicial to the defendant. No abuse of discretion on the part of the judge is disclosed.

Defendant's assignment of error number four is broken into several subsections. These subsections primarily relate to the action of the Court in submitting to the jury the question of whether there was any consideration for the "marginal" amendment in 1953 to the original 1952 contract. There is considerable argument by counsel on each side as to whether or not the amendment is under seal; and there is exception by the defendant to the judge ruling that the amendment was not under seal. In our view, it makes no difference whether the amendment is under seal or not. There must be some new consideration for the modification of an executed contract. 17 Am.Jur.2d, Contracts, Sec. 469, p. 939. The contract in this case insofar as the construction was concerned, was fully executed at the time of the amendment. A court of equity can look behind the seal to see if there is valuable consideration to support the contract. Cruthis v. Steele, 259 N.C. 701, 131 S.E.2d 344. Therefore, whether the alleged amendment was under seal or not, it was appropriate for the Court to inquire whether it was supported by a valuable consideration. This issue was submitted to and answered by the jury against the defendant.

The other subsections to defendant's assignment of error number four are difficult to relate to the record because the defendant has given us no assistance along this line. Although there may be technical error in the instructions given by the trial judge, the defendant has failed to point out any prejudice resulting therefrom. Therefore defendant's assignment of error number four is overruled.

In the trial we find no prejudicial error.

Affirmed.

MALLARD, C. J., and PARKER, J., concur.