{
  "id": 8527332,
  "name": "ROBERT H. GILBERT v. JOE Q. THOMAS, JR.",
  "name_abbreviation": "Gilbert v. Thomas",
  "decision_date": "1983-10-18",
  "docket_number": "No. 828SC967",
  "first_page": "582",
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      "year": 1982,
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          "page": "339"
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      "cite": "57 N.C. App. 249",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
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  "last_updated": "2023-07-14T21:03:16.623003+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Chief Judge Vaughn and Judge Hill concur."
    ],
    "parties": [
      "ROBERT H. GILBERT v. JOE Q. THOMAS, JR."
    ],
    "opinions": [
      {
        "text": "BECTON, Judge.\nI\nOn 24 March 1979, plaintiff Robert H. Gilbert, made the high bid to purchase the J. W. Gates Farm at an auction conducted by Barrow-Kennedy Auction Company (Barrow-Kennedy). Barrow-Kennedy acted as selling agent for the true owners, Gates\u2019 heirs. Originally the farm had been offered at auction as nine separate tracts, identified as such on the Barrow-Kennedy sales map. Barrow-Kennedy next offered to sell the farm in groups of two or three tracts, and then, even later, offered to sell the farm as a whole. According to the Barrow-Kennedy map, only two of the nine tracts, tracts 8 and 9, carried tobacco allotments. Since the total price of the entire farm to Gilbert was higher than anticipated, Gilbert advertised to sell his right to purchase twenty acres of the farm, tracts 1 and 2 on the Barrow-Kennedy map. The closing on all the tracts had to be made on or before 24 April 1979.\nOn 11 April 1979 defendant, Joe Q. Thomas, Jr., agreed in writing \u201cto purchase Tract Number 1 and Number 2 of the Gates Farm (Barrow-Kennedy Map dated 24 March 1979) for the price of $51,250.00.\u201d The existence of a tobacco allotment was not discussed. Under the terms of the agreement, Gilbert received $1,250.00 as a binder. The balance was to be paid to Barrow-Kennedy on 23 April 1979.\nThe following day, 12 April 1979, Thomas entered into a contract of sale with W. W. Kennedy of Barrow-Kennedy to purchase Tracts 1 and 2 for $51,250.00. The contract specifically stated \u201cThese tracts do not contain tobacco allotments with them.\u201d Under the terms of the contract, Thomas made an $11,250 down payment \u2014 $10,000 deposited with Kennedy, and the $1,250 he previously paid to Gilbert. The balance was due on or before 24 April 1979.\nKennedy testified that he informed Thomas prior to signing the 12 April 1979 contract that Thomas would have to execute a U.S. Department of Agriculture, ASCS Form 155 before the closing on 23 April 1979. The sale of the farm had precipitated a reallocation of the tobacco allotments. Form 155 served to waive any tobacco allotment granted to Tracts 1 and 2. Thomas assured Kennedy that he would sign the form before the closing, but he failed to do so, despite repeated reminders by Kennedy. As a result, the ASCS committee gave Thomas 2219 pounds of the Gates Farm\u2019s tobacco allotment. Further, the deed conveying Tracts 1 and 2 to Thomas contained no reservation of the tobacco allotment to the grantor.\nGilbert brought this action against Thomas for breach of the 12 April 1979 contract and for fraud. At the close of Gilbert\u2019s evidence, Thomas was granted a directed verdict. Gilbert appeals.\nII\nGilbert excepts and assigns error to the trial court s granting of Thomas\u2019 motion for directed verdict. Gilbert argues that there was sufficient evidence of \u201cthe existence of a contract between defendant and plaintiff\u2019 to withstand the motion for directed verdict.\nOn appeal, Gilbert frames the question for this Court in the broad language of the motion for directed verdict. \u201cIn passing upon a trial judge\u2019s ruling as to a directed verdict, we cannot review 'the case as the parties might have tried it; rather, we must review the case as tried below, as reflected in the record on appeal.\u201d Tallent v. Blake, 57 N.C. App. 249, 252, 291 S.E. 2d 336, 339 (1982). In the pleadings, Gilbert based his actions for breach of contract and for fraud solely on the 12 April 1979 contract. He alleged that Kennedy acted as his agent in the transaction. The parties later stipulated in a pre-trial order that the Gilbert\u2019s issue on breach of contract was: \u201cDid the defendant breach his contract with the plaintiff as alleged in the complaint?\u201d A pre-trial order \u201ccontrols the subsequent course of the action, unless modified at the trial to prevent manifest injustice.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 16 (1969) (emphasis added). In this case, Gilbert had not asked leave to modify the pre-trial order prior to the granting of the motion. Thus, the narrow issue before the trial court required evidence of an agency relationship to support the action for breach of the 12 April 1979 contract.\nGilbert offers this Court five new theories to establish the existence of a contract between plaintiff and defendant: (a) the 11 April 1979 agreement created a binding contract; (b) the 11 April 1979 agreement is a contract of assignment; (c) the reservation of the tobacco allotment was omitted by Gilbert and Thomas from the 11 April 1979 contract by mutual mistake and the parties should be allowed to reform the contract; (d) Gilbert is an intended beneficiary of the 12 April 1979 contract; and (e) the 12 April 1979 contract is a new substitute contract \u2014 a novation. We are unable to consider these different theories in passing upon the trial judge\u2019s ruling on the motion for directed verdict. To do so would be to review the case \u201cas the parties might have tried it.\u201d Tallent at 252, 291 S.E. 2d at 339.\nUnder North Carolina\u2019s \u201cnotice theory of pleading,\u201d a trial proceeds on the issues raised by the pleadings unless the pleadings are amended. Roberts v. William N. and Kate B. Reynolds Mem. Park, 281 N.C. 48, 187 S.E. 2d 721 (1972). If an issue not raised by the pleadings is tried by the \u201cimplied consent\u201d of the parties, the pleadings are deemed amended, as in a contract case in which plaintiff, without objection, presents evidence of negligence. See N.C. Gen. Stat. \u00a7 1A-1, Rule 15(b) (1969); 1 McIntosh, North Carolina Practice and Procedure \u00a7 970.80 (Supp. 1970). When, however, the evidence used to support the new issue would also be relevant to support the issue raised by the pleadings, the defendant has not been put on notice of plaintiffs new or alternate theory. Therefore, defendant\u2019s failure to object does not constitute \u201cimplied consent.\u201d See, 1 McIntosh, North Carolina Practice and Procedure \u00a7 970.80 (Supp. 1970); 6 C. Wright and A. Miller, Federal Practice and Procedure \u00a7 1493, at 456 & n. 71 (1971).\nIn this case, the evidence relied on by Gilbert to support his new theories was essential to proving the original agency theory. Thomas was not put on notice of Gilbert\u2019s new theories. Rule 15(b) allows \u201camendment by implied consent to change the legal theory of the case so long as the opposing party has not been prejudiced in presenting his case, i.e., where he had a fair opportunity to defend his case.\u201d Roberts at 59; 187 S.E. 2d at 727.\nBy analogy, in ruling on a motion for directed verdict, the trial judge must have a fair opportunity to evaluate the evidence on all issues. In this case, the trial judge\u2019s focus had been narrowed by the pretrial order. Even assuming that \u201cmanifest injustice\u201d might allow an amendment by implied consent, the nature of the evidence presented failed to put Thomas and the trial judge on notice. Gilbert had the burden of asking leave of the court to modify the pleadings and pre-trial order, thereby broadening the trial judge\u2019s evaluation of the evidence and issues.\nSince the agency theory was the sole theory before the trial court, we are unable to consider Gilbert\u2019s additional theories on appeal. \u201cA party may not acquiesce in the trial of his case upon one theory below and then argue on appeal that it should have been tried upon another. Bryan Builder\u2019s Supply v. Midyette, 274 N.C. 264, 162 S.E. 2d 507 (1968) . . . This is true with respect to a motion for directed verdict.\u201d Tallent at 252, 291 S.E. 2d at 339.\nFor the foregoing reasons, we uphold the trial court\u2019s granting of Thomas\u2019 motion for a directed verdict.\nAffirmed.\nChief Judge Vaughn and Judge Hill concur.",
        "type": "majority",
        "author": "BECTON, Judge."
      }
    ],
    "attorneys": [
      "Wallace, Barwick, Landis, Rodgman & Bower, P.A., by P. C. Barwick, Jr. and Joseph S. Bower, for plaintiff appellant.",
      "White, Allen, Hooten, Hodges & Hines, P.A., by Thomas J. White and John R. Hooten, for defendant appellee."
    ],
    "corrections": "",
    "head_matter": "ROBERT H. GILBERT v. JOE Q. THOMAS, JR.\nNo. 828SC967\n(Filed 18 October 1983)\nAppeal and Error \u00a7 59.2; Rules of Civil Procedure \u00a7 15\u2014 appellate review of directed verdict \u2014 inability to consider theories on appeal that were not before trial court\nIn a breach of contract action where the issue at trial, as stipulated in a pre-trial order and as defined in the complaint, required evidence of an agency relationship to support the action for breach of contract, appellant could not offer on appeal five new theories to establish the existence of a contract that were not considered at the trial level since to do so would be to review the case \u201cas the parties might have tried it.\u201d G.S. 1A-1, Rules 15 and 16.\nAPPEAL by plaintiff from Rouse, Judge. Judgment entered 27 April 1982 in Superior Court, Lenior County. Heard in the Court of Appeals 22 August 1983.\nPlaintiff appeals from trial court\u2019s granting of motion for directed verdict at close of plaintiffs evidence in action for breach of contract.\nWallace, Barwick, Landis, Rodgman & Bower, P.A., by P. C. Barwick, Jr. and Joseph S. Bower, for plaintiff appellant.\nWhite, Allen, Hooten, Hodges & Hines, P.A., by Thomas J. White and John R. Hooten, for defendant appellee."
  },
  "file_name": "0582-01",
  "first_page_order": 614,
  "last_page_order": 618
}