{
  "id": 8628953,
  "name": "A. E. BRADSHAW v. E. F. CONGER",
  "name_abbreviation": "Bradshaw v. Conger",
  "decision_date": "1932-06-15",
  "docket_number": "",
  "first_page": "796",
  "last_page": "800",
  "citations": [
    {
      "type": "official",
      "cite": "202 N.C. 796"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "143 S. E., 471",
      "category": "reporters:state_regional",
      "reporter": "S.E.",
      "opinion_index": 0
    },
    {
      "cite": "195 N. C., 702",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8631592
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/195/0702-01"
      ]
    },
    {
      "cite": "149 S. E., 381",
      "category": "reporters:state_regional",
      "reporter": "S.E.",
      "opinion_index": 0
    },
    {
      "cite": "197 N. C., 407",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8629261
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/197/0407-01"
      ]
    }
  ],
  "analysis": {
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  "last_updated": "2023-07-14T22:38:17.445618+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "A. E. BRADSHAW v. E. F. CONGER."
    ],
    "opinions": [
      {
        "text": "BeosdeN, J.\nThis Court, in Walston v. Coppersmith, 197 N. C., 407, 149 S. E., 381, said: \u201cIt is not controverted that a dispute had arisen between the parties before the delivery of the cheek. Obviously, if the check had been delivered under the circumstances with the notation thereon, nothing else appearing, the delivery, acceptance and cashing of said check would have undoubtedly constituted a settlement.\u201d Whether a dispute has arisen between the parties, before a check purporting to constitute a settlement in full, has been delivered by the party to be charged, constitutes an issue of fact for a jury. Hardware Co. v. Farmers Federation, 195 N. C., 702, 143 S. E., 471. In the case at bar there was one contract between the parties, and the testimony of plaintiff discloses that a dispute or controversy had arisen and existed between the parties long before the check was given. Hence the instruction of the trial judge was correct.\nComplaint is made of the charge of the court upon the fourth issue, but the record discloses no exception to such instruction, and, therefore, tbe .same cannot be considered. Tbe defendant pleaded no counterclaim, and tbe trial judge instructed tbe jury tbat in any event plaintiff is entitled to recover $23.50. But tbe jury in answer to tbe third issue found tbat tbe defendant \u201ctendered\u201d to tbe plaintiff tbe correct amount of money involved, and it must, therefore, be assumed tbat tbe tender was properly made and kept alive, and is now presently available. Moreover, tbe burden of showing error is upon tbe appellant.-\nNo error.",
        "type": "majority",
        "author": "BeosdeN, J."
      }
    ],
    "attorneys": [
      "Alley & Alley and Edwards & Leatherwood for plaintiff.",
      "Moody & Hall and Johnston & Horner for defendant."
    ],
    "corrections": "",
    "head_matter": "A. E. BRADSHAW v. E. F. CONGER.\n(Filed 15 June, 1932.)\n1. Compromise and Settlement A a \u2014 Acceptance of check purporting to be in full settlement of disputed contract constitutes a full settlement.\nWhere a dispute arises between the parties to a contract and the party to be charged tenders a cheek purporting to be in full settlement thereof except for one enumerated item, the acceptance of the cheek constitutes a full' settlement of tlie matter except for tlie enumerated item,' and -whether a controversy had arisen before the tender of the check is an issue of fact for the jury, but where the testimony of the party denying such settlement is to the effect that such dispute has arisen prior to the tender of the check a directed verdict on the issue is not error, and the fact that the check later tendered in full settlement of the item excepted in the first was refused does not alter this result.\n2. Appeal and Error F c \u2014 Only exceptive assignments of error will be considered.\nAlleged error must be supported by an exception in the record or it will not be considered on appeal.\n3. Appeal and Error J d \u2014 Appellant lias burden of showing error.\nWhere the jury finds upon one issue that the defendant tendered the plaintiff the correct amount recoverable under a subsequent issue and fails to answer the subsequent issue, it will be assumed that the tender was properly made and is available to the plaintiff, and error will not be found on appeal, the burden of showing error being upon the appellant.\nCivil actioN, before MacBae, Special Judge, at Spring Term, 1932, of SwaiN.\nThe plaintiff alleg'ed that he and the defendant entered into a written contract on or about 16 November, 1928, in which the defendant agreed to buy from plaintiff certain telephone and telegraph poles in such numbers and amounts \u201cas the plaintiff might desire to manufacture and deliver to defendants at points and. places mentioned in said contract;\u201d and subsequently entered into an oral contract to purchase pole timber on certain additional boundaries of land, and in the performance of said contract purchased teams and equipment, and built roads and bridges in order to convey the poles from the woods to the railroad sidings. The plaintiff further alleged that the defendant breached the contract in several particulars specified in the complaint, resulting in damages in the sum of $3,000.\nThe defendant, filing an answer, denied any and all breaches of contract upon his part, and alleged that the contract expired on 1 January, 1930, and that on 31 December, 1929, there was a full settlement between the parties, and that the defendant tendered to the plaintiff in full settlement a check in words and figures as follows, to wit: \u201cE. E. Conger, Stanton, Virginia, No. 939, Lovingston, Ya., 31 December, 1929. Pay to the order of A. E. Bradshaw $93.70, ninety-three- and 70/100 dollars. For account in full except 40\u2019s not branded. To the First National Bank, Lovingston, Ya. M. C. Roush, agent.\u201d That thereafter on 8 January, 1930, the said defendant tendered to the plaintiff a check in words and figures as follows: \u201cE. F. Conger, Staunton. Virginia. No. 954. Lovingston, Va., 8 January, 1930. Pay to tbe order of A. E. Eradshaw, $23.50, twenty-three and 50/100. In full payment of large 40\u2019ft\u2019s. mentioned in last settlement. Settlement ck-939. To the First National Bank of Nelson County, Lovingston, Va. M. C. Roush, agent.\u201d The defendant further alleged that the plaintiff cashed the check dated 31 December, 1929.\nThe plaintiff offered evidence that he declined to accept the check for $23.50, dated 8 January, 1930; and returned the same to the defendant. The plaintiff testified: \u201cThe last poles I delivered was sometime during the fall of 1929, I couldn\u2019t say just what time. Along about that time the defendant had been very slow about taking my poles from the stations where I delivered them; they would not be taken up as often as a carload had been delivered to the station. . . . They ceased taking up the poles at all sometime during the fall of 1929; Mr. Roush (agent for defendant) and I talked about it all along, and he said he would take them. . . . Sometime about the middle of May, 1929, he told me they had lost the market for the large poles, . . . and on 12 June, in my presence, he told Will Woodard not to bring any more 45\u2019s and 50\u2019s on the skidway, that they couldn\u2019t take them. He never took any more of the 45\u2019s and 50\u2019s from the woods \u2014 he took all that were at the station. . . . He quit taking any sort of poles sometime during the fall; he said he would take them but he didn\u2019t do it. We talked about it every time I saw him and I would call him on the telephone.\u201d\nA subcontractor of plaintiff testified: \u201cMr. Bradshaw and them got in a dispute towards fall of the year and the others were not taken out; I quit myself. I couldn\u2019t tell how many poles were left, I never went over and counted what was left on the ground. ... It was sometime near August when I quit work.\u201d Another witness for plaintiff said that he had heard the jDlaintiff Bradshaw talking about the matter and testified: \u201cI figured there was going to be a lawsuit, I heard him talk something about it, but I had nothing to do with it. ... I had heard Mr. Bradshaw say it looked like he was going to have to law to get his rights. I heard Mr. Roush say-he couldn\u2019t take up those heavy poles, and I figured there might be a lawsuit.\u201d The plaintiff, Bradshaw, was recalled and testified: \u201cIt was about the middle of May when Mr. Roush got careless about taking up my poles and the longer the worse. This was in 1929. . . . This check dated 31 December, for $93.70, is endorsed by me, and I received money for it.\u201d \"With reference to the cheek, a witness for plaintiff said: \u201cThe check for $93.70, dated 31 December, 1929, was given in settlement of cut backs and on poles on the yard at Epps Spring. . . . This check was given when Mr. Bradshaw and I were present, but nothing was said about a settlement of the contract, it was these cut backs.\u201d\nThe following issues were submitted to the jury:\n1. \u201cDid the plaintiff and the defendant enter into the contract referred to in the complaint?\u201d\n2. \u201cDid the plaintiff and the defendant make a final settlement of all matters referred to in said contract, except as to large 40\u2019s not branded on 31 December, 1929, as alleged in the answer?\u201d\n3. \u201cDid the defendant thereafter tender to the plaintiff the correct amount for the large 40\u2019s referred to in the settlement of 31 December, as alleged in the answer?\u201d\n4. \u201cDid the defendant breach the contract, as alleged in the complaint ?\u201d\n5. \u201cIf so, what damages, if any, is the plaintiff entitled to recover?\u201d\nThe jury answered the first issue \u201cYes,\u201d the second issue \u201cYes,\u201d the third issue \u201cYes,\u201d the fourth issue \u201cNo,\u201d and did not answer the fifth issue.\nThe trial judge charged the jury to answer the second issue \u201cYes.\u201d The court, further charged the jury that in any event the plaintiff was entitled to recover $23.50.\nFrom judgment upon the verdict the plaintiff appealed.\nAlley & Alley and Edwards & Leatherwood for plaintiff.\nMoody & Hall and Johnston & Horner for defendant."
  },
  "file_name": "0796-02",
  "first_page_order": 862,
  "last_page_order": 866
}