CONDITION PRECEDENT. See "Consideration."
CONFESSION OF JUDGMENT. See "Judgment."
CONSIDERATION. See "Contracts."
Under Revisal, sec. 2173, which enacts "that an antecedent or pre-
existing debt constitutes value, and is deemed such whether
the instrument is payable on demand or at a future time,"
such an indebtedness is sufficient consideration to constitute
one a holder for value within the meaning of the law merchant.
Manufacturing Co. v. Summers, 102.
An agreement made in good faith to compromise and settle disputed
matters is valid and binding, and will be sustained as not only
based upon a sufficient consideration, but upon the highest
consideration of public policy as well; and this, too, without
any special regard to the special merits of the controversy or
the character or validity of the claims of the respective parties.
York v. Westall, 276.
A contract, by which the defendant agreed to withdraw all claim
to standing trees and to abandon all interest he acquired
under an extension by parol of a written contract with plain-
tiff's grantor to cut timber, and the plaintiff, in consideration
thereof, agreed to waive or release all claim for damages for
the trespass alleged to have been committed by the defendant,
is enforcible and is not within the statute of frauds. Ibid.
Where the plaintiff proposed to purchase certain bonds issued by
the defendant, “when legally issued to the satisfaction of our
attorney," which proposition was accepted by the defendant,
the approval of the attorney selected to pass upon the validity
of the bonds, honestly and fairly expressed, was a condition
precedent to the completion of the purchase. Webb v. Trus-
tees, 299.
Where at the time a lot was conveyed to the defendant, as an in-
ducement thereto and in part consideration for the sale and
delivery of the deed, the defendant then agreed with plaintiff
that if he did not build on the lot, but resold it, plaintiff was
to have the profits realized on such resale: Held, that such
agreement could be shown by oral evidence and did not come
within the statute of frauds and was not without considera-
tion. Bourne v. Sherrill, 381.
CONSTITUTION OF NORTH CAROLINA. See "Constitutional Law."
Art. I, sec. 16. Imprisonment for Debt. Ledford v. Emerson, 527.
Art. II, sec. 14. Aye and No Vote. Commissioners v. Trust Co.,
CONSTITUTION OF NORTH CAROLINA-Continued.
Art. IV, sec. 27. Jurisdiction of Justice of Peace-Contract-Ex
Delicto. Duckworth v. Mull, 461.
Art. IV, sec. 12. Damages as Distinguished from Property. Ibid.
CONSTITUTIONAL LAW.
There is no constitutional requirement that the tax rate for county
purposes shall be the same everywhere. It varies in the
different counties, and may vary in different townships, parts
of townships, districts, towns and cities in the same county.
Jones v. Commissioners, 59.
The Constitution recognizes the existence of counties, townships,
cities and towns as governmental agencies; but they are all
legislative creations and subject to be changed, abolished or
divided, at the will of the General Assembly. Ibid.
An entry on the legislative journal that “The bill passed its second
reading, ayes 39, noes.., as follows": then follows a list of
those voting in the affirmative, without any reference to those
voting in the negative, indicates that the bill passed by a
unanimous vote and that there were no names to be recorded
in the negative, and is a compliance with the requirements of
Article II, sec. 14, of the Constitution, that the ayes and noes
shall be entered on the journals. Debnam v. Chitty, 131 N. C.,
657, overruled. Commissioners v. Trust Co., 110.
In criminal cases the Supreme Court has no power under the Con-
stitution nor at common law to entertain a motion for a new
trial on the ground of newly discovered evidence. State v.
Turner, 641.
The method by which jurors are to be selected and summoned not
being prescribed by the Constitution, and no limitation therein
upon the power of the General Assembly to regulate it, an
exception to the validity of section 10, chapter 158, of the
Private Laws of 1895, because the jurors were not drawn out
of the box, but were summoned by the marshal as directed by
the act, cannot be sustained in a criminal action charging de-
fendant with selling liquor in violation of section 9 of said
act. State v. Brittain, 668.
The defendant's rights guaranteed by the Constitution under an
indictment for violating the provisions of chapter 158 of the
Private Laws of 1895, are preserved to him when an unre-
stricted appeal from the Mayor of the town is given him by
the act, and the trial in the Superior Court is de novo; alleged
errors in the Mayor's Court may be disregarded on appeal to
the Supreme Court. Ibid.
CONSTITUTIONAL LAW-Continued.
The Legislature has constitutional authority to regulate the prac-
tice of dentistry under Revisal, sec. 4468, forbidding any
person to practise who has not graduated at a reputable dental
school and received a certificate of proficiency or qualification
from the Board of Dental Examiners, etc.; under section 4470,
making the requirements inapplicable to any person who was
a dental practitioner in this State before 7 March, 1879, if
on or before 25 February, 1890, he should file a verified state-
ment with the Board of Dental Examiners showing his name,
residence, date of diploma or license, and date of commencing
practice here; under section 3642, making it a misdemeanor
to practise dentistry without first having passed the required
examination and received the certificate. State v. Hicks, 689.
Where plaintiff obtained a judgment of divorce from bed and board
against defendant, and the defendant was ordered to convey
a one-fourth interest in a certain tract of land to a trustee
for the use and benefit of plaintiff or pay into the Clerk's
office $250 for the same purpose, the land to be leased by the
trustee or sold and the proceeds applied to the support of
plaintiff, the execution of a quit-claim deed by defendant to
the trustee was not a compliance with the order, where it was
afterwards discovered that defendant had, prior to the judg
ment of separation, conveyed all of his interest in the land to
his son; and an order adjudging him in contempt and com-
mitting him to jail until he had complied with the order of
alimony was proper, the Court having found that he was
fully able to comply. Green v. Green, 406.
Where the defendant was adjudged in contempt and the ruling was
affirmed on appeal, and upon the presentation of the certificate
of this Court, the Court below affirmed the former order in
every particular and directed the same to be executed, the
defendant cannot, by a second appeal, review the former decree
of this Court. Ibid.
See "Substantial Performance"; "Insurance"; "Waiver."
In cases of contract, as well as in tort, it is generally incumbent
upon an injured party to do whatever he reasonably can to
improve all reasonable and proper opportunities to lessen the
injury. He must not remain supine, but should make reason-
able exertions to help himself, and thereby reduce his loss
and diminish the responsibility of the party in default to him.
Railroad Co. v. Hardware Co., 54.
It is competent to show, by oral evidence, a collateral agreement as
to how an instrument for the payment of money should in
fact be paid, though the instrument is in writing and the
promise it contains is to pay in so many dollars. Typewriter
Co. v. Hardware Co., 97.
In an action on a written contract, where the defendant set up as
a defense certain verbal stipulations, and the jury by their
verdict have accepted the existence of the verbal stipulations,
the fact that the Court annexed to it a qualification not re-
quired by the law to make it a valid defense is not error of
which plaintiff can complain. Ibid.
Where the plaintiff proposed to sell a certain kind of machine and
the defendant to buy another and quite a different kind,
there was a mutual mistake as to the subject-matter of the
sale, and the minds of the parties not having met in one and
the same intention, there was no contract, but the defendant,
having received and converted to his own use the machine
shipped to him, is liable for its value, and his counter-claim,
for the difference in the price of the two machines, must fail.
Machine Co. v. Chalkley, 181.
Where, in an action to recover upon a contract for services, plain-
tiff introduced a letter from defendant which fixes the com-
pensation, but does not set forth the terms of the employment
nor the nature of the services expected of plaintiff, and it
shows that the entire contract was not reduced to writing,
it was competent to resort to parol evidence to explain the
ambiguous terms and to fill out the terms of the contract and
to show that the plaintiff represented himself competent to
superintend the work he was about to undertake. Ivey v.
Cotton Mills, 189.
Where one contracts to serve another there is an implied represen-
tation that he is competent to discharge the duties of his
position and is possessed of all the requisite skill which will
enable him to do so, and the breach of any material stipula-
tion, whether express or implied, which disables the servant
to discharge his part of the contract or which results in his
inability to do so, furnishes good ground for the master to
terminate the contract and is a valid and legal excuse for the
discharge of the servant. Ibid.
In an action to recover upon a contract for services, the Court
correctly charged that the burden was upon the defendant to
show good legal excuse for discharging the plaintiff, and that
if the plaintiff failed to perform his duty as superintendent,
the defendant had the right to discharge him, and that if the
plaintiff had performed his part of the contract, and did not
voluntarily withdraw from the service, they should find that
he was wrongfully discharged. Ibid.
A contract for the sale and delivery of yarns, in which it was
stipulated that bills of lading were to be sent direct to the
buyer and upon receipt of the goods he was to remit to the
seller, was not substantially performed when the seller shipped
the goods with bill of lading attached, and the buyer was
justified in not receiving them, and is entitled to recover as
damages the difference between the contract price and what
it reasonably cost him on the market to supply the goods.
Riley v. Carpenter, 215.
One who invokes the doctrine of substantial performance in order
to show a right to recover on a contract, must present a case
in which there has been no wilful omission or departure from
the terms of the contract. Ibid.
Where a by-law of an assessment insurance company provided "that
any member failing to pay his assessment within thirty days
after notice mailed to him shall be dropped from the associa-
tion and shall be required to pay a new membership fee in
order to renew his insurance," and the insured, having failed
to pay an assessment of which he had notice, was dropped,
the company had the right to refuse to reinstate him after
the lapse of three months after he had forfeited his policy
and when his health had become hopelessly impaired. Hay
v. Association, 256.
The fact that an assessment life insurance company, on some occa-
sions, accepted payment by the insured of assessments after
they should have been paid, did not constitute a waiver of the
terms of the policy nor amount to an agreement that premiums
need not be paid promptly, especially where there was un-
reasonable delay and the health of the insured had become
hopelessly impaired. Ibid.
Where the complaint alleged a contract of sale and a breach
thereof, and the answer denied that it was an absolute sale
and alleged by way of counter-claim that the goods were
shipped on consignment, and demanded an account, the plain-
tiff's cause of action was in itself a direct denial of the
counter-claim, and a judgment by default on the counter-claim
before the issues in reference to the plaintiff's cause of action
were determined would have been irregular and improper.
Tillinghast v. Cotton Mills, 268.
|