
    FALKNER v. PILCHER.
    (Filed March 8, 1905).
    
      Appeal — Issues.
    1. In an action brought before a justice of the peace, against two defendants to recover damages for breach of contract, both defendants being non-residents, and being brought into court by publication and attachment, where judgment by default was rendered against one of the defendants, condemning the attached property to the payment of the judgment, it was error in the trial Judge, upon appeal by the other defendant, to refuse to submit an issue, made between the parties, as to the breach of the contract.
    2. It is mandatory upon the trial Judge to submit issues that present the material facts in controversy, and when answered, they must be sufficient to dispose of the controversy and to enable the Court to proceed to judgment.
    ActioN by Eugene Ealkner against Pilcber & Co. and American National Bank, beard, by Judge T. J. Shaw and a jury at October Term, 1904, of tbe Superior Court of VaNCE County. Erom a judgment in favor of tbe defendant bank, plaintiff appealed.
    Plaintiff sued defendants, Pilcber and tbe American National Bank, before a justice of tbe peace to recover $200, “due for damages for breach of contract in failing to deliver 600 bushels of corn in good condition after payment for same and demanded by plaintiff.” Tbe defendants, being non-residents, were brought into court by publication and an .attachment was issued and levied on another and later shipment of corn. Pilcber did not appear and judgment by default was rendered against him for $141 with interest and costs. It was further adjudged that Pilcber owned tbe com which bad been attached, and it having been sold, tbe proceeds in tbe bands of tbe constable were condemned to the payment of the judgment against him. The bank, who had appeared by attorney and resisted the suit, appealed from the judgment. At the trial in the Superior Court, the Judge ruled that “the ownership of the corn was the sole question for trial,” the burden being upon the bank to show its title. Plaintiff excepted. The Court after the testimony had been introduced submitted this issue: “Was the corn attached the property of the American National Bank?” Plaintiff excepted to this issue upon the ground that it was insufficient to determine the rights of the parties because, if the jury should find that the bank is the owner of the corn, he would still be entitled to recover damages from the bank for the breach of the contract mentioned in the summons and in the return of the justice. The Court declined to submit any other issue and instructed the jury that the only question for them to consider was the ownership of the corn, and then gave further instructions as to the law upon that issue. Plaintiff in apt time excepted. The jury answered the issue “Tes.” A motion by plaintiff for a new trial was overruled and he again excepted. Judgment was rendered for defendants and plaintiff appealed.
    
      H. T. Powell and T. M. Pittman, for the plaintiff.
    
      T. T. Hicks and A. J. Harris, for the defendant bank.
   Walker, J.,

after stating the case. It may be conceded as a general proposition that a party cannot complain because a particular issue was not submitted to the jury unless he tendered it, but the rule is subject to this qualification, that the issues submitted must in themselves be sufficient to dispose of the controversy and to enable the Court to proceed to judgment, for in that respect the duty of the Court to submit issues is mandatory. Tucker v. Satterthwaite, 120 N. C., 118; Burton v. Mfg. Co., 132 N. C., 17. It was certainly not incumbent on the.plaintiff to tender tbe issue Avhen tbe Court bad already announced at tbe outset, that it would not submit it, nor to offer evidence in support of sucb an issue. Davidson v. Gifford, 100 N. C., 18. In this case tbe plaintiff alleged distinctly in tbe summons a cause of action against defendant bank as well as one against Pilcber. Tbe justice’s return to tbe Court also shows that sucb a cause of action was alleged, and it further appears therein that tbe bank denied its liability. So that here was an issue squarely made between tbe plaintiff and tbe bank as to tbe alleged breach of tbe contract to sell tbe plaintiff sound corn. Tbe appeal of tbe bank brought to tbe Superior Court for trial, not only tbe issue as to tbe ownership of tbe corn, but also tbe issue as to tbe bank’s liability for breach of tbe contract, for the trial was de novo and therefore embraced all litigated matters pending between tbe plaintiff and tbe bank. When tbe Court, in tbe beginning, refused to submit an issue as to tbe breach of the contract, tbe plaintiff excepted, and when tbe evidence bad been introduced and tbe Court undertook to settle tbe issues, tbe plaintiff again excepted to tbe submission of tbe single issue as to the ownership of tbe corn and to tbe exclusion of any other issue. We have seen that all material issues must be submitted unless waived. Gordon v. Collett, 102 N. C., 532. How has tbe plaintiff waived his right to have tbe issue submitted ? At every turn be has insisted upon it. It was surely not necessary to make a formal tender of tbe issue when tbe Court bad positively ruled that it would not submit it. It would have been indecorous to do so. Again, the issues submitted must present tbe material facts in controversy, and they must, when answered, be sufficient to enable tbe Court to proceed to judgment and must also support the judgment rendered. Vaughan v. Parker, 112 N. C., 96; Paper Co. v. Pub. Co., 115 N. C., 147; Hatcher v. Dabbs, 133 N C., 239; Pearce v. Fisher, Ibid., 333. Tbe jury have found that tbe bank is tbe owner of the corn, but bow can tbe Court upon this finding, wben considered with reference to tbe case made by tbe pleadings, proceed to judgment? Tbe issue as to tbe ownership of tbe corn was ancillary to tbe main issue in tbe case as to liability, and was necessary only to determine whether, if tbe liability was established, it could be enforced by a condemnation of tbe corn or its proceeds, tbe defendant being a nonresident and tbe property having been attached in order to give tbe Court jurisdiction, and to secure tbe payment of any judgment recovered. Fisher v. Ins. Co., 136 N. C., 217. If tbe bank is liable to the plaintiff and is tbe owner of tbe corn, tbe latter can be .applied to tbe satisfaction of that liability. If tbe bank is liable to tbe plaintiff but is not tbe owner of tbe corn, tbe latter of course cannot be so applied. Tbe liability is therefore tbe principal question involved and tbe Court cannot give judgment upon tbe verdict as it now stands. It must be supplemented by another finding as to tbe liability of tbe bank for a breach of tbe contract alleged in the pleadings, or, more correctly speaking, in tbe summons and the return of tbe justice, and tbe case .will therefore be remanded with direction to submit an issue or issues presenting that question. Tbe verdict upon the issue as to ownership of tbe corn will not be disturbed. If tbe jury find for tbe plaintiff upon tbe new issue, be will be entitled to judgment and to have the corn or its proceeds applied to tbe payment of tbe amount so found to be due, otherwise tbe bank will be entitled to tbe judgment.

Error.  