Graves v. . Cameron

¶1dissenting: My opinion is that the transaction between the parties, by which the former mortgage was satisfied and canceled, with a stipulation that this suit should be dismissed, was a bar in law to the further prosecution of this action, and, therefore, was not such matter as could be proved in diminution of damages upon the execution of a writ of inquiry. If it had been duly and properly pleaded, the court would have dismissed this action. As said at this term, in Patrick v. Dunn, 162 N. C., by Justice Allen: “Evidence in bar of plaintiff’s right of action is not admissible on an inquiry as to damages,” citing Blow v. Joyner, 156 N. C., 140. Plaintiff could not, therefore, upon the facts, have a judgment even for nominal damages and costs. Having settled his cause of action, there was nothing left to try, and he would have been dismissed from the court, with costs to defendant. U. S. v. Chouteau, 102 U. S., 603; Parker v. Riley, 21 Ga., 427; Kohn v. Zimmerman, 34 Iowa, 544. It was held in Parker v. Riley, supra,that where a cause of action is compromised, and settled, the remedy is on the contract of compromise, not on the original cause of action, and the pending action can proceed no further. The general rule is that -it will be dismissed at plaintiff’s cost.