Goeckel v. Stokely

73 S.E.2d 618 (1952)

236 N.C. 604

GOECKEL v. STOKELY.

No. 528.

Supreme Court of North Carolina.

December 10, 1952.

*619 Elbert E. Foster and J. F. Flowers, Charlotte, for defendant, appellant.

Alvin A. London and O. W. Clayton, Charlotte, for plaintiff, appellee.

*620 JOHNSON, Justice.

The defendant's assignments of error challenge the action of the trial court in (1) overruling his motion for judgment as of nonsuit, (2) charging the jury on the second issue, and (3) limiting the defendant's counterclaim-recovery to $107.41.

1. The refusal to nonsuit. The defendant takes the position that his letter of 7 February, 1951, to the plaintiff sets forth the terms of his offer of employment, and that the plaintiff after receiving the letter came to Charlotte and entered upon the work of the defendant. On these facts, the defendant contends the plaintiff accepted the terms of the employment as set out in the letter, and that since the asserted item of moving expense is nowhere mentioned in the letter, the plaintiff is precluded from recovering therefor.

The defendant's position is untenable. It fails to take into account (1) the plaintiff's letter of reply dated 13 February, 1951, indicating that the matter of "expense of moving" was being left open for further discussion, and (2) plaintiff's testimony that when the matter was discussed in Chicago the defendant verbally agreed to pay this item of expense.

To constitute a valid contract the parties must assent to the same thing in the same sense, and their minds must meet as to all the terms. If any portion of the proposed terms is not settled, there is no agreement. Sprinkle v. Ponder, 233 N.C. 312, 64 S.E.2d 171; Kirby v. Stokes County Board of Education, 230 N.C. 619, 55 S.E.2d 322; Sides v. Tidwell, 216 N.C. 480, 5 S.E.2d 316; Federal Reserve Bank v. Neuse Manufacturing Co., 213 N.C. 489, 196 S.E. 848; Croom v. Goldsboro Lumber Co., 182 N.C. 217, 108 S.E. 735; Wilson v. W. M. Storey Lumber Co., 180 N.C. 271, 104 S.E. 531.

And where correspondence or written memoranda is relied on to establish a contractual relation, if, from the language used, it appears that some term which either party desires to be in the contract is not included, requiring further treaty between the parties, there is no completed agreement. 12 Am.Jur., Contracts, Sec. 23. See also Richardson v. Greensboro Warehouse & Storage Co., 223 N.C. 344, 26 S.E.2d 897, 149 A.L.R. 201.

Here it is manifest from plaintiff's reply letter of 13 February that the minds of the parties did not meet on the proposals set out in the defendant's letter of 7 February and that further treaty between the parties was necessary in respect to whether the defendant was to pay the plaintiff's expense of moving. And the evidence pro and con as to whether this item was made a part of the employment contract as finally consummated presented a clearcut issue of fact for the jury.

2. The charge on the second issue. The defendant (1) points to the fact that the plaintiff has declared on a special contract whereby the defendant allegedly agreed to pay plaintiff's moving expense, and (2) urges that all the evidence tends to show the amount of this expense was $580.62. Upon this theory of the trial, so fixed by the pleadings and proofs, the defendant contends the plaintiff was entitled to recover all or none of this amount and that the trial court should have so instructed the jury. The defendant therefore contends it was error for the trial court to charge the jury to find and determine the amount, if any, the plaintiff is entitled to recover as "the reasonable amount of the expense necessarily incurred in connection with the removal of the plaintiff's household furniture and equipment from Bogota to Charlotte."

Conceding, without deciding, that the court should have instructed the jury in accordance with the defendant's contention, it is not perceived that the failure to so charge was prejudicial to the defendant. It would seem that the error, if any, was helpful to the defendant, as shown by the verdict for the lesser sum of $342.75.

3. Limiting the defendant's counterclaim-recovery. Here the defendant assigns as error the failure of the trial court to submit to the jury the issue raised by defendant's second counterclaim in which he seeks to recover for losses and damage *621 allegedly caused by the plaintiff's turning in purported orders which in fact were not given by the customers.

However, an examination of the record discloses no evidence upon which to predicate recovery on this counterclaim. Therefore, the exceptions directed to the failure of the court to charge on the theory of this counterclaim are without merit.

The defendant further assigns as error the ruling of the court in excluding the transcript of the adverse examination of the defendant taken at the instance of the plaintiff. However, the transcript is not in the record, and we are unable to determine whether the defendant was prejudiced by its exclusion. Hence error has not been made to appear. Martin v. Currie, 230 N.C. 511, 53 S.E.2d 447; Francis v. Francis, 223 N.C. 401, 26 S.E.2d 907.

The other exceptions to the exclusion of testimony appear to be without merit. The proffered testimony was properly excluded as hearsay.

No error.

PARKER, J., took no part in the consideration or decision of this case.