
    SOUTHERN COTTON OIL COMPANY v. A. E. SHORE et al., Trading as E. BREEN & CO.
    (Filed 23 February, 1916.)
    Trials — Voluntary Nonsuit — Appeal and Error.
    Tbe plaintiff in an action may, in proper instances, take a voluntary nonsuit at any time before the rendition of the verdict; and where the court has obtained the issues from the jury during their deliberation thereon, in an action upon contract, and the first issues have been answered in the plaintiff’s favor and made known to them, but the answers to the issues as to damages are not known to them, and the judge delivers the issues again to the jury with the instruction that they may deliberate upon the issues and make such changes as they may desire, it is reversible error to refuse the plaintiff’s motion for a voluntary nonsuit, made as the jury were retiring to again consider the issues.
    Appeal by plaintiff from Bond, J., at April Term, 1915, of WayNE.
    Civil action. Tbe plaintiff sought to recover damages for the breach of a contract, dated 15 October, 1913, which was alleged to have been made between it and the defendants for the sale of certain “mill-run linters” and “second-cut linters,” the defendants, as alleged, having-agreed to take the entire output of the plaintiff’s mill for the season of the years 1913 and 1914, and plaintiffs agreeing to deliver them, as fast as they could be made ready for shipment, at the prices stated in the contract.
    The question as to the liability of A. E. and P. 0. Shore turned upon the authority of S. Breen, who assumed to act for the defendants, to make the contract for them, and the subsequent ratification of the contract by the Shores.
    The case was submitted to the jury upon issues which, with the answers thereto, are as follows:
    1. Was the act and conduct of S. Breen, in making the contract sued on in the complaint, beyond the scope of the partnership business? Answer: “Yes.”
    2. Was the defendant S. Breen, in making the contract with the plaintiff, acting within the apparent scope of his authority? Answer: “No.”
    3. Did the defendants Shore and Shore have knowledge that S. Breen had made or entered into the contract sued on? Answer: “No.”
    4. If there was any limitation upon the authority of S. Breen to make the contract, did plaintiff have any knowledge or notice thereof? Answer: “No.”
    5. Did Southern Cotton Oil Company have notice at or before making of said alleged contract of any facts or circumstances calculated to put a prudent man on notice that S. Breen was making said purchase for purposes outside of the scope of said partnership business ? Answer: “No.”
    6. Did the defendants Shore and Shore, by their acts and conduct, ratify the transaction? Answer: “Yes.”
    7. Were the linters shipped from Tarboro worthless and without commercial value, as alleged in the answer ? Answer: “No.”
    8. What was the difference in market value, if anything, of the linters shipped from Tarboro (52 bales) and the contract price at time Shore and Shore refused to take them? Answer: “No difference.”
    9. At contract price, what sum would represent the 52 bales‘sent from Tarboro at time it was refused by Shore and Shore, if said goods were of kind bought under alleged contract? Answer: “$815.25” (by consent).
    9%. Did plaintiff Southern Cotton Oil Company, to whose order the 52 bales were shipped from Rocky Mount, leave same with the railroad so they were lost, after plaintiff was notified by the defendants, Shore and Shore, that they would not receive same? Answer: “Yes.”
    10. What amount are defendants Shore and Shore indebted to the plaintiff ? Answer: “$i.”
    11. In what amount is defendant S. Breen indebted to plaintiff? Answer: “$1.”
    The jury retired with the issues, after being charged by the court upon the law.
    The following statement appears in the record:
    “About 7 p. m. the judge wa.s sent for, and, counsel for both sides being present, the jury handed the issues to the judge with part of the issues, including issues 10 and 11 as to damages, answered.
    “The court having, at plaintiff’s request, charged the jury to answer all the issues as to liability in favor of plaintiff in any view of the evidence, counsel for defendant agreed that, subject to defendant’s exceptions to the correctness of the charge, the court could write the answers in favor of plaintiff to issues numbers 4, 5, and 6, and by consent of plaintiff the court wrote the answers to numbers 9 and 9%. This left all the issues answered, as appears in record, except the issues numbered 7 and 8. Each issue, with the answers to the same, except' issues 7 and 8 and the issues as to amount of damages, was then read aloud in presence of counsel for both sides, and the jury agreed that such was their verdict as to all the issues then answered. The court then handed the paper back to the jury and told them to retire and consider their answers as to issues 7 and 8, and to return when they had answered them, if they wished no change in any others; and the jury then retired to their room. All of the above occurrences took place in presence of •counsel for both sides, and without any objection.
    “The plaintiff’s'counsel, soon after the jury went in their room, arose and said that plaintiff would take a nonsuit. Defendant objected; objection sustained, and plaintiff excepted.
    “A few moments thereafter some question arose as to the exact language of issues 7 and 8, and the court told the officer to knock on the door of the jury room and ask the jury to send the paper to the court for a moment. The court took the paper and read issues 7 and 8, and asked if counsel for defendant objected to the withdrawal of issues 7 and 8, to which the reply was ‘No.’
    “The court then had the jury called in and, in the presence of counsel •for both sides, stated that- it had concluded to withdraw issues 7 and 8, and then did so. Counsel for plaintiff objected to the withdrawal of issues 7 and 8, and excepted to tbe action of tbe court in withdrawing same. Tbe jury was then called in and, tbe issues and answers to same, except tbe 7th and 8th, being read aloud, and being exactly as they were when tbe jury was sent out to consider issues 7 and 8, were again asked if that was their verdict before they were sent out to consider issues 7 and 8, and if it was still their verdict. They answered both questions in tbe affirmative. Tbe court ordered tbe verdict as to all tbe issues except 7 and 8 to be recorded, and tbe plaintiff excepted. Before tbe jury was sent out to consider issues 7 and 8 counsel for plaintiff knew tbe answers to all tbe other issues, except tbe issues relating to damages, which bad been answered by tbe jury before they first came in. When tbe court sent out to borrow tbe issues, as above stated, and got tbe paper, answers to issues 7 and 8 bad been written by tbe jury, but, a.s far as tbe court knows, neither side knew what tbe answers to 7 and 8 were.”
    Tbe following statement also is in tbe case:
    “After tbe jury retired to consider its verdict tbe occurrences herein-before related took place, as shown by tbe memorandum made by tbe court at the time, tbe court now adding thereto this statement: “At tbe time tbe verdict was banded back by tbe judge to tbe jury, and they were told to retire and answer issues 7 and 8, which were afterwards withdrawn, the court then regarded said verdict as in all respects completed except as to said issues 7 and 8, and would have bad same recorded without banding them back to tbe jury but for tbe opinion of the court, at that time, that it would perhaps be better to have the answers to 7 and 8 as well as to the other issues, which answers as to 7 and 8 tbe court soon thereafter concluded were immaterial, as set out in the recital of tbe occurrences which precedes this statement. Tbe court did not at any time regard issues 7 and 8 as being necessary to a determination of tbe action, but was actuated simply by a desire to have all facts before tbe Supreme Court, in tbe event that tbe court might mistake tbe law in laying down tbe proper rule as to tbe measure of damage.s. Tbe court charged tbe jury fully as to tbe measure of damages, and no exception was taken to this part of tbe charge by tbe plaintiff, either at tbe trial or in its case on appeal.’ ”
    This statement by tbe judge also appears:
    “By inspection of tbe issues, it will be noticed that is.sues 7 and 8 were not necessary to tbe determination of case, but were more in tbe nature of questions of fact, so that in tbe event of an appeal, if tbe court did not lay down tbe correct rule as to tbe measure of damages, a new trial might be rendered unnecessary by reason of tbe facts to be. ascertáined by those two questions. That was tbe purpose of tbe court in submitting those two issues, as they were not tendered by either side nor objected to-by either side.”
    
      There was a verdict in favor of the plaintiff, assessing its damages, as shown by the record, and judgment was entered thereon. Plaintiff, after reserving all of its exceptions, appealed to this Court.
    
      Langston, Allen & Taylor and Murray Allen for plaintiff.
    
    
      F. S. Spruill for defendant.
    
   “WalkeR, J.,

after stating the case: There was a petition in this Court for a certiorari to bring up the evidence and the judge’s charge, which do not appear in the record, for the purpose of showing, as stated by counsel, the materiality of the 1th and 8th issues, if this Court failed to reverse the ruling upon plaintiff’s voluntary tender of a nonsuit. But in the view we take of the case it is unnecessary to consider the petition.

A voluntary nonsuit is an abandonment of his cause by a plaintiff who allows a judgment for costs to be entered against him by absenting himself, or failing to answer when called upon to hear the verdict. 14 Cyc., 393. Plaintiff also may elect to enter a nonsuit, and this may be done at any time before the verdict is rendered. Under the early English practice the plaintiff had a right to be nonsuited at any stage of the proceedings he might prefer, and thereby reserve to himself the power of bringing a fresh action for the same subject-matter; and this right continued to the last moment of the trial, even till after verdict rendered, or, where the case was tried by the court without a jury, until the judge had pronounced his judgment; but this practice was not adopted here, and was abolished in England by 2 Henry IV., ch. 7, as early as the year 1400. See 6 A. and E. PI. and Pr., p. 836 and note 4; 14 Cyc., 400; Washburn v. Allen, 77 Me., 344. The rule with us has been that the nonsuit may be taken at any time before verdict.

It was said by Pearson, C. J., for the Court, in Graham v. Tate, 77 N. C., 120, 123: “A plaintiff can at any time before verdict with'draw his suit, or, as it is termed, ‘take a nonsuit,’ by absenting himself at the trial term. If he does so, and fails to answer, when called, by himself or by his attorney, the court directs a nonsuit to be entered, the cost is taxed against him, and that is. an end of the case. Even when the plaintiff appears at the trial, takes a part in it by challenging jurors, examining and cross-examining witnesses, and by the argument of his counsel, if he finds from an intimation of the court that the charge will be against him, he may submit to a nonsuit and appeal. This is every day’s practice. It is based upon the idea that the plaintiff announces his purpose not to answer when called to hear the verdict, and the advantage is that the plaintiff can have his Honor’s opinion reviewed, and should the decision of the Supreme Court be against him, he can commence another action; whereas if he allows a verdict to be entered, it is conclusive unless set aside. Nay, according to tbe course of tbe court, tbe plaintiff is at liberty to take a nonsuit by announcing bis purpose to absent himself even after tbe judge bas charged tbe jury and their verdict is made up, provided be does so before tbe verdict is made known.”

Our ca,se is much like that of Cahoon v. Brinkley, 168 N. C., 257. There six issues were submitted to tbe jury. Tbe last three issues were answered by tbe court with tbe consent of the parties. Tbe jury returned to tbe courtroom and stated that they bad not agreed on tbe first three issues, but one of tbe jurors remarked that they bad agreed or could agree on tbe first issue. Tbe court directed tbe jury to retire to their room and answer tbe first issue, if they bad agreed as to it, or could agree. They started toward tbe jury room, when plaintiff announced that be would take a nonsuit; but tbe court refused to permit him to do so, and be excepted. Tbe jury returned with their answer to tbe first issue. Tbe court received the verdict, withdrew tbe second and third issues, and entered judgment on tbe verdict as thus reformed. We held that tbe court erred in refusing tbe nonsuit, Justice Brown saying that “tbe plaintiff bad a right to submit to a judgment of nonsuit, -inasmuch as no verdict bad been rendered,” and tbe judgment was reversed because of tbe erroneous ruling. This case is not essentially different from that one. Eleven issues were submitted to tbe jury. They returned with all tbe issues practically answered, except those numbered 7 and 8. Tbe court told tbe jury to retire and consider issues 7 and 8 and to return when they bad answered them, “if they wished no change in any others.” It was at this time that tbe nonsuit was taken, or rather tendered, and refused. It is evident that when plaintiff chose to be nonsuited there bad been no complete verdict rendered, because tbe jury bad not answered all tbe issues, as they bad been instructed to do; and the judge at that time apparently so regarded it, for be “concluded thereafter” that issues 7 and 8 were immaterial, and be sent tbe jury back to their room with tbe direction to complete their verdict by answering tbe 7th and 8th issues, and to change tbe answers to other issues if they were so minded. This left tbe entire verdict within tbe control of tbe jury, except, perhaps, tbe issues answered by tbe court. They had tbe power to change the answers to tbe last two issues and award substantial instead of nominal damages. Tbe plaintiff did not know what bad been tbe answers of tbe jury to tbe issues 10 and 11, when it elected to be nonsuited, and they were tbe vital issues. Tbe cause of-action or liability of defendants bad already been established, and tbe remaining inquiry related to tbe amount of damages. So that tbe plaintiff bad no advantage of tbe defendant in that respect, having no superior knowledge as to tbe contents of tbe verdict; but if it bad, tbe fact remains that there bad been no verdict at tbe time it tried to withdraw from the court by a nonsuit. Because the court may have afterward.s stated its view as to the materiality of issues 7 and 8 can make no difference in the result. The jury bad delivered no verdict, and the court had not accepted what they had done as a verdict, otherwise they would not have been told to retire and fill out their verdict, or change it if they wished to do so. There was no reason at that stage of the ca.se why the plaintiff should have become frightened and run away from the verdict. He knew that his cause of action was secure, and he was ignorant of what would be the damages. So far as then appeared to him, he could have gone on with the case in perfect safety. From some undisclosed motive he decided that it was better to withdraw, as he had the right to do.

No harm has come to the defendant, except delay, for the plaintiff must pay the costs. The mere prospect of ánnoyance from a second litigation is not considered as legally prejudicial to defendant. Pullman Palace Car Co. v. Cent. Tr. Co., 171 U. S., 138 (43 L. Ed., 108).

It is worthy of serious consideration whether issues 7 and 8 were not material or, at least, proper issues in view of the averment in the answer that the Enters were “commercially worthless”; but we will express no opinion upon this question until it becomes necessary to do so. We merely decide -the single proposition that, without any regard to the real or legal merits of the controversy, there was error in refusing the non-suit, and there must be a reversal of the judgment for this reason, with a direction to enter judgment .below upon the voluntary nonsuit, with costs in that court against the plaintiff.

Reversed.  