Jones v. Jones

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70 S.E.2d 13 (1952)

235 N.C. 390


No. 305.

Supreme Court of North Carolina.

April 9, 1952.

*14 Childs & Childs, Lincolnton, Fred D. Caldwell, Maiden, for plaintiff, appellee.

Russell W. Whitener and W. J. Sherrod, Newton, for defendant, appellant.

DEVIN, Chief Justice.

The defendant brings this case here for review chiefly on the ground that the court below erred in overruling his plea of estoppel, or, if his answer be held insufficient to constitute a formal plea of estoppel, that the court erred in holding that plaintiff was not bound by the allowance heretofore made him.

It appears from the record, however, that the allowance made plaintiff by the Clerk covered only the period while he was guardian of decedent and did not embrace the entire time during which services were rendered and for which he now claims, and further that his present claim is supported by the written authorization of decedent which was discovered subsequent to the making of the allowance. This note, shown to be in the handwriting of deceased, though insufficient to constitute a will, contained the expression: "I want John to have a reasonable amount for taking care of me." The defendant was given credit in the verdict and judgment for the part payment theretofore received for his services. We think the court below correctly ruled on the question thus presented.

There was no exception to the judge's charge to the jury, nor was any exception to the judge's rulings on the admission of evidence brought forward in defendant's assignments of error.

While defendant in his case on appeal assigns error in the denial of his motion for judgment of nonsuit, the record shows that no motion for nonsuit was made at the close of plaintiff's evidence, nor at the close of all the evidence. G.S. ยง 1-183. The judge charged the jury upon all the evidence offered to answer the issue as to the statute of limitations in favor of the plaintiff. To this no exception was noted. The question is not presented for our decision.

Upon the record before us we find

No error.

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