#### W. T. HINNANT v. S. A. BOYETTE.

(Filed 19 September, 1928.)

1. Judgment — Conclusiveness of Adjudication — Interlocutory Judgments —Issues. . ■ '

When, in an action to- recover the purchase price of goods sold and delivered, the plaintiff alleges the purchase of an inventory of articles, ■ giving a list of them,.' which the defendant denies, hut alleges that only a part of the articles were purchased, not by him but by his son who had fully paid for them and', under order of court, a receiver was appointed to take possession of the goods,- and- the 'defendant retained possession *45under the further terms of the order, by filing a bond securing the payment of any judgment the plaintiff might recover in the action, whether the jury found the sale to have been made to the defendant or to his son, and the order provides that the son might be made a party: Held, the terms of the order, unexcepted to by defendant and under which he has proceeded, are binding upon him, and, in the action, issues as to purchase either by the defendant or his son should be submitted to the jury, and the court’s refusal to submit such issues upon the application of the plaintiff entitles him to a new trial.

2. Parties — Defendants—Joinder.

When the issues in controversy raise the question as to whether the plaintiff sold certain goods to the defendant or to his son, the son is 'at least a proper party to the action, and should be made a party defendant before the trial of the action.

Appeal by plaintiff from Nunn, J., at February Term, 1928, of JohNstoN.

New trial.

Action to recover for goods sold and delivered under contract between plaintiff and defendant.

In Ms complaint plaintiff alleged that pursuant to a contract entered into by and between plaintiff and defendant, on or about 7 December, 1925, be sold and delivered to defendant certain articles of personal property, described in an inventory thereof, attached to and made a part of the complaint; that defendant agreed to pay to plaintiff, in cash, upon the completion of said inventory, as the purchase price of said articles, the amount shown thereby as the value of said articles, plus 7% per cent; that before the completion of said inventory, and while same was being taken, defendant paid to plaintiff the sum of $1,500.00, on account of said purchase price; that upon the completion of said inventory, the articles shown therein were delivered to defendant, and that thereafter defendant, although retaining possession of said property, declined and refused to pay to plaintiff the balance due on said purchase price, to wit, the sum of $2,960.81.

Plaintiff demands judgment that he recover of defendant the sum of $2,960.81, with interest and costs, and prays that a receiver be appointed by the court to take possession of the articles of personal property, included in said inventory, and now in possession of defendant, and that said receiver be directed to sell the same under orders of the court, and apply the proceeds of said sale as payments on said judgment.

Defendant, in his answer, denied that he had purchased from plaintiff the articles of personal property as alleged in the complaint, and also denied that he had paid any sum to plaintiff on account of the purchase price for same. He denied that said articles of personal property- were delivered to him by plaintiff, or that same were in his possession. Defendant alleged that his son, Willie ¡Boyette,; entered into a contract with *46plaintiff by wbicb be purchased a portion of said articles of personal property included in tbe inventory, and tbat bis said son bad paid to plaintiff tbe full amount of tbe purchase price for tbe articles of personal property sold and delivered by plaintiff to bis said son.

After tbe filing of tbe complaint and answer, tbe cause came on for bearing before Sinclair, J., upon plaintiff’s motion for tbe appointment of a receiver, in accordance with tbe prayer in tbe complaint. Upon facts found at said bearing, an order was made appointing a receiver, and authorizing said receiver, upon tbe execution of a bond in tbe sum of $4,000.00, to take possession of “tbe property described in tbe inventory attached to tbe complaint, and now in tbe possession of S. A. Boyette and Willie Boyette, and situate and being in tbe filling station and garage formerly owned by plaintiff in tbe town of Micro.” Tbe said order contains tbe following claim:

“It is further ordered, considered and adjudged tbat upon tbe execution of bond by defendant, S. A. Boyette, in tbe sum of $4,000.00, conditioned upon tbe payment of such judgment as plaintiff may recover for said goods as shown by said inventory attached to tbe complaint, upon tbe final adjudication of said cause, whether tbe jury should find tbat said sale was made to tbe defendant, S. A. Boyette, as alleged in tbe complaint, or to tbe said Willie Boyette, as alleged in said defendant’s answer, then and in tbat event the receiver herein appointed is directed to deliver to tbe defendant tbe property described in said inventory attached to and made a part of tbe complaint in this cause, and thereupon, it is ordered tbat tbe receiver and bis bondsman be discharged from all liability on said receiver’s bond.

“This cause is continued for further bearing and orders.

“Plaintiff has leave to make Willie Boyette party defendant.”

Thereafter, a bond executed by defendant, S. A. Boyette, with P. A. Boyette as bis surety, in tbe sum of $4,000.00, and conditioned as required by said order, was filed in this cause. Said bond has been lost from tbe papers in this cause, but it was agreed on tbe argument in this court tbat tbe bond as appears in tbe record is substantially a copy of tbe bond filed by tbe defendant. Upon tbe execution of said bond, and pursuant to tbe terms of tbe order made by Sinclair, J., tbe articles of personal property included in tbe inventory attached to and made a part of tbe complaint, were not taken into possession by tbe receiver.

Willie Boyette, son of defendant, has not been made a party defendant.

At tbe trial tbe following issues were submitted to tbe jury :

“1. Did tbe defendant, S. A. Boyette, contract to buy from plaintiff tbe property described in tbe complaint, at tbe price and upon tbe terms alleged in tbe complaint ? Answer:.

*47“2. I£ so, wbat amount is plaintiff entitled to recover of the defendant, S. A. Boyette? Answer:.”

Tbe jury, having answered the first issue “No,” under instructions of the court, did not answer the second issue.

From judgment upon the verdict, plaintiff appealed to the Supreme Court.

Albert M. Noble and Battle & Winslow for plaintiff.

Paul D. Grady and J. Ira Lee for defendant.

CoNNOR, j.

The issues submitted to the jury at the trial of this action arise upon the pleadings; answers to these issues would be determinative of plaintiff’s right to recover upon the cause of action alleged in the complaint. However, the controversy between the parties has been limited by the order of Sinclair, J., to which defendant did not except. Having failed to except to this order, defendant is deemed to have consented thereto; he is bound by its terms. Bryson v. R. R., 141 N. C., 594, 54 S. E., 434. Defendant, by the execution of the bond, availed himself of the provisions of the order, and thereby precluded the receiver, appointed by the court, upon plaintiff’s motion, from taking possession of the property. The property, by virtue of the order and the bond, remained in the possession of defendant and his son, Willie Boyette. Defendant agreed to pay such judgment as plaintiff might recover upon the trial, whether the jury should find that he was the purchaser, or whether the jury should find that his son was the purchaser. Defendant thus, in effect, stipulated that the issues to be submitted to and passed upon by the jury should involve only the amount which plaintiff was entitled to recover by judgment against either the defendant or his son. At the trial, by virtue of the order of Sinclair, J., the matter in controversy between the parties was the subject-matter of the contract, and not the parties thereto.

Plaintiff contends that he sold and delivered all the articles included in the inventory attached to the complaint; defendant contends that plaintiff sold only such portion of the said articles as plaintiff has been paid for. Issues involving these contentions are the proper issues, under ■stipulation of the parties. Issues, substantially similar to the issues tendered by plaintiff, and refused upon objection of defendant, should be submitted to the jury.

Leave was given plaintiff in the order of Sinclair, J., to make Willie Boyette a party defendant. He is at least a proper party, and should be made a defendant, prior to the trial of the action.

For errors with respect to the issues, there must be a

New trial.