#### JOHN B. VANDIFORD v. HENRY G. VANDIFORD et al.

(Filed 19 April, 1939.)

1. Trial §§ 38, 50b — Verdict in this case held at variance with the pleadings, evidence, and theory of trial, and should have been set aside upon motion.

Plaintiff alleged that defendant took title to the locus in quo as trustee for his benefit, and breached the trust by selling the lands to a third person. The jury sustained plaintiff’s contention as to the trust, but found that plaintiff was not indebted to defendant for any sum for the purchase price, taxes, interest, and improvements and that defendant was not indebted to plaintiff in any sum for amounts paid by plaintiff during the years in question, although the court instructed the jury as to the respective contentions of the parties as to the amount the jury should find under each of the issues, and answered a subsequent issue as to the amount plaintiff was entitled to recover in a sum between the respective contentions of the parties. Held: It would seem the jury undertook to compromise the case and the verdict is at variance with the pleadings, evidence, charge of the court, and the theory of trial, and defendant’s motion to set it aside should have been allowed.

2. Appeal and Error § 41—

When a new trial is awarded on one exception, other exceptions relating to matters which may not arise on the subsequent hearing need not be determined.

Appeal by defendants from Frizzelle, J., at December Term, 1938, of GREENE.

Civil action tried upon tbe following issues:

“1. Did the defendant, Henry G. Yandiford, verbally agree with the plaintiff, John B. Yandiford, at or before the execution and delivery of the deed by the Land Bank to Henry G. Yandiford, that he, Henry G. Yandiford, would take title to the lands described in the complaint and hold them in trust for the plaintiff, as alleged in the complaint? Answer: ‘Yes.’

*462“2. Was tbe plaintiff ready, willing and able at all times to comply with, tbe terms of tbe agreement as alleged in tbe complaint ? Answer: ‘Yes.’

“3. Is tbe plaintiff’s cause of action barred by tbe three year statute of limitations as alleged in tbe answer? Answer: 'No.’

“4. Is tbe plaintiff, John B. Vandiford, by reason of atornment estopped to maintain this action as alleged in tbe answer ? Answer: 'No.’

“5. Is tbe plaintiff, John B. Vandiford, estopped to maintain this action by reason of bis laches as alleged in tbe answer? Answer: 'No.’

“6. Did tbe defendant, Henry Gr. Vandiford, in violation of bis agreement, sell and convey tbe lands in tbe sum of $11,000.00 and retain tbe proceeds thereof as alleged in tbe complaint ? Answer: 'Yes.’

''7. In what amount, if any, is tbe plaintiff, John B. Vandiford, indebted to tbe defendant, Henry Gr. Vandiford,-for tbe purchase price, interest, improvement and taxes? Answer: 'None.’

“8. In what amount, if any, is tbe defendant, Henry Gr. Vandiford, indebted to tbe plaintiff for money paid to tbe defendant for tbe years 1933, 1934, 1935, 1936, and 1937? Answer: 'None.’

“9. What amount, if any, is tbe plaintiff, John B. Vandiford, entitled to recover of tbe defendant, Henry G. Vandiford, on account of tbe breach of contract in tbe sale of said lands in tbe sum of $11,000.00, as alleged in tbe complaint? Answer: '$5,000.00.’”

There was a motion by tbe defendants to set aside tbe verdict, which was overruled. Exception.

From judgment on tbe verdict, tbe defendants appeal, assigning errors.

J. Faison Thomson and Walter Or. Sheppard for plaintiff, appellee.

X. A. Pittman and J. A. J ones for defendants, appellants.

Stacy, C. J.

It is apparent from a perusal of tbe record that tbe last three issues were answered without regard to tbe pleadings, tbe evidence, tbe contentions of tbe parties, or tbe charge of tbe court. May-bap tbe jury undertook to compromise tbe case. Bartholomew v. Parrish, 186 N. C., 81, 118 S. E., 899; Gulley v. Raynor, 185 N. C., 96, 116 S. E., 171.

Tbe defendant contended from the evidence that tbe 7th issue should be answered in tbe sum of $16,348.40; while tbe plaintiff contended that it should be answered in tbe sum of $8,665.44. Tbe court instructed tbe jury to answer tbe issue accordingly as they should find tbe facts to be. Tbe answer is “Nothing.”

*463Tbe eigbtb issue was submitted under an instruction that it should be answered in the sum of $10,041.83, according to plaintiff’s evidence and contention, or $9,026.82 according to the defendant’s admission. It is answered “Nothing.”

The verdict is at variance with the pleadings, the evidence, and the theory of the trial. The defendants’ motion to set it aside should have been allowed. Daniel v. Belhaven, 189 N. C., 181, 126 S. E., 421; Nall v. McMath, 117 N. C., 183, 98 S. E., 374; McIntosh N. C. Prac. & Proc., 665. It is manifestly wanting in legal requirements. Daniel v. Belhaven, supra. It bears the earmarks of compromise. Watts v. Greenlee, 13 N. C., 87; Note, 134 A. S. R., 1061.

There are other exceptions appearing on the record worthy of consideration, especially those pertaining to the cross-examination of the defendant, but as they are not likely to arise on the further hearing, present rulings thereon will be omitted.

A careful perusal of the record engenders the thought that a venire de novo should be ordered. Kinney v. Beverley, 12 Va., 318. It is accordingly decreed.

Venire de novo.