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Coker v. Stevens

Filed: October 16, 1979.

W. P. COKER, D/B/A COKER HEATING AND AIR CONDITIONING COMPANY
v.
TERRY E. STEVENS AND WIFE, MARTHA C. STEVENS



Appeal by defendants from Styles, Judge. Judgment entered 18 August 1978 in District Court, Buncombe County. Heard in the Court of Appeals 31 August 1979.

Erwin, Judge. Judges Clark and Wells concur.

Erwin

Defendants assign as error: "The trial court committed prejudicial error by finding facts, making conclusions of law, and entering judgment against defendants on the unpleaded theory that the defendants had wrongfully retained funds which were owed to their general contractor." Defendants contend that plaintiff alleged in his complaint and proceeded to trial only on the theory of agency. Plaintiff did not move to amend his complaint during the course of the proceedings. We agree with defendants that prejudicial error occurred and award them a new trial.

The court, on its own motion, questioned witness O. L. Walker:

"The Court: Mr. Walker, in November of 1976 had all of the contract price been paid to you?

Defendants' Exception No. 5

Mr. Walker: No, sir.

The Court: How much of it remained unpaid?

Defendants' Exception No. 6

Mr. Walker: The way I have it, I'm close to Five Thousand Dollars ($5,000.00), something in that neighborhood, with the changes.

The Court: Do you gentlemen have any further questions?

Mr. Dameron: Your Honor, I don't particularly want to get into the question of disputes outside this contract, so I ...


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