#### R. E. SENTELLE v. BOARD OF EDUCATION.

(Filed 26 February, 1930.)

1. Pleadings I a: D d — Where good cause is stated judgment on pleadings will he denied and defective statement is waived hy failure to ■ demur.

A motion for judgment on the pleadings is properly refused when the complaint states a good cause of action, and where it is objectionable as a defective statement of a good cause of action the defendant waives the defect by failing to demur and by answering its allegations and pleading to the merits.

2. Schools and School Districts D c — Agreement that superintendent might later attack settlement is valid and will support action.

Where the board of education of a county forces the county superintendent, by threats of criminal action, to make a settlement according to an accountant’s report which he maintains is erroneous, and there is sufficient evidence to be submitted to the jury of an agreement that such payment by the superintendent should not preclude him from afterwards attacking the settlement for errors and irregularities: *HeVL,*in the superintendent’s action alleging errors in the settlement and seeking to recover the moneys wrongfully paid, the defendant’s motion as of nonsuit is properly denied.

3. Appeal and. Error J e — Where court withdraws incompetent letters from evidence before jury knows of contents it is not reversible error.

Where certain letters are erroneously admitted in evidence, and the trial court, before they have been read and before the jury has any knowledge of their contents, withdraws them from evidence and instructs the jury not to consider them, the incident could not have influenced the jury to' the prejudice of the objecting party and it will not be held for reversible error.

4. Evidence D f — Admission of memorandum for purpose of corroborating witness held not error.

Where the plaintiff and the cashier of a bank have testified that the plaintiff had transferred certain funds on deposit in the bank, the introduction in evidence for the purpose of corroborating their testimony of a memorandum, testified by the cashier to be a bank record and a correction of deposit, is not reversible error.

5. Trial B e — Failure of trial court to instruct jury not to consider certain incompetent evidence withdrawn by him is reversible error.

Where erroneous evidence has been admitted to the consideration of the jury under exception, it is the duty of the trial court to withdraw it from the evidence, but where he withdraws such evidence and fails to instruct the jury not to consider it in making up their verdict, it constitutes reversible error.

*3906. Appeal and Error K lb — Where judgment erroneously contains definite item, judgment less such amount may he rendered if appellant consents.

Where a certain and definite item of damages has been erroneously included in the judgment upon the verdict of the jury, the case may be remanded to the Superior Court for the rendition of a judgment less the erroneous amount if the appellee consents thereto, otherwise a new trial of the issues affected thereby will be had before a jury.

Appeal by defendant from *Oranmer, J.,*at November Term, 1929, of Edgecombe. Error.

Excepting a brief interval tbe plaintiff was superintendent of public instruction of Edgecombe County from 1 July, 1920, to 18 January, 1926, when be resigned bis office. Tbe defendant employed auditors to make an annual examination and audit of bis accounts and accepted tbe audits tbus made at tbe end of eacb fiscal year up to 1924, Tbe defendant then employed A. Lee Rawlings & Company to make an audit for tbe year beginning 1 July, 1924, and ending 30 June, 1925. There is evidence that these accountants inspected tbe audits previously made and reported certain irregularities and deficiencies in tbe plaintiff’s accounts. Tbe defendant demanded that tbe plaintiff make settlement in accordance with this report. Thereupon tbe plaintiff, threatened with criminal prosecution for tbe misappropriation of funds, paid tbe amount claimed to be due, alleging that it was erroneous, wrongful, and unjust, and, with tbe defendant’s consent, “reserving bis right to resist payment and to recover tbe money unjustly required of him and paid by him, . . . 'and to receive credit for errors and corrections in tbe said audit.” Tbe plaintiff alleges that before bringing suit be demanded of tbe defendant return of tbe amount be bad wrongfully paid and that tbe defendant refused to return tbe amount or any part of it. Tbe defendant filed an answer denying liability, and at tbe trial tbe jury in response to tbe issue found that tbe defendant is indebted to tbe plaintiff in tbe sum of $4,840.33 with interest from 18 January, 1926. Judgment for tbe plaintiff; appeal by defendant upon error assigned.

*V. E. Fountain and H. H. Philips for plaintiff.*

*George M. Fountain for defendant.*

Adams, J.

Tbe exceptions addressed to tbe appellant’s motions for judgment upon tbe pleadings and for dismissal of tbe action as in case of nonsuit must be overruled. Tbe first motion rests upon tbe objection that tbe complaint does not particularly set forth tbe several items constituting tbe alleged errors and irregularities or allege that any substantial error or irregularity appears in tbe last report of tbe certified *391accountants. Tbe objection is not valid. There is a broad distinction between the statement of a defective cause of action, and a defective statement of a good cause of action. The complaint is not within the first class-, ’and if within the second (a question we need not discuss) the defendant did not file a demurrer, but waived the defect by answering the complaint and pleading to the merits. *Johnson v. Finch,*93 N. C., 205; *Warlick v. Lowman,*103 N. C., 122, 126; *Wright v. Ins. Co.,*138 N. C., 488; *Eddleman v. Lentz,*158 N. C., 65. The defendant made no application for a bill of particulars to make more definite the alleged cause of action. C. S., 534; *Bristol v. R. R.,*175 N. C., 509.

The second motion was properly denied because the evidence interpreted most favorably for the plaintiff was of sufficient probative force to justify its submission to the jury. This, in our opinion, is patent. Both the oral evidence and the record evidence are in support of 'an agreement between the parties that the plaintiff’s payment of the amount claimed to be due should not preclude him from afterwards attacking the settlement for errors and irregularities; and that errors are alleged is not to be doubted. The defendant’s disposition of the money is immaterial upon the question whether the settlement was incorrect. The crucial point is whether the plaintiff was required to pay more than was due, or whether the defendant was unduly enriched at the plaintiff’s expense.

The plaintiff offered in evidence nine statements or letters written by teachers in the county concerning the distribution of school books. The judge afterwards withdrew them and instructed the jury not to consider them. The defendant objected to the introduction of the papers and to their withdrawal. They were not read in the hearing of the jury, hut were merely turned over to the stenographer for identification. So far as the record discloses no member of the jury had any knowledge of the contents of the letters and such knowledge cannot reasonably he inferred from the form of the questions preceding the introduction of the papers in evidence.- We do not see how this incident could have influenced the jury to the prejudice of the defendant. It is the duty as well as the province of the trial court to withdraw incompetent evidence from the consideration of the jury. *McAlister v. McAlister,*34 N. C., 184; *Cooper v. R. R.,*163 N. C., 150; *S. v. Stewart,*189 N. C., 340.

The fourth and fifth exceptions relate to the admission in evidence of a bank slip tending to show the transfer of an item of $465 from the “agent’s account” to one of the county funds, with which the plaintiff is not credited in his settlement. It is contended that the evidence was "hearsay. The plaintiff testified that the transfer was actually made, and the cashier of the bank said that the memorandum slip was the cor*392rection of a deposit in tbe bank, tbat it was a record of tbe bank, and tbat tbe item bad been transferred as tbe plaintiff contends. In these circumstances tbe admission of tbe memorandum as corroborative evidence does not entitle tbe defendant to a new trial. Exceptions 6, 7, and 10 point out no sufficient cause for reversing tbe judgment, and raise no question calling for special comment.

But error is shown by exceptions twelve and thirteen. On bis cross-examination R. L. Lee, a witness for tbe defendant, was permitted to identify and read a letter written to'the plaintiff by tbe General Seating Company. Tbe plaintiff afterwards, by tbe court’s consent, withdrew tbe letter as evidence. Tbe introduction and tbe recall of tbe letter were subject to tbe defendant’s exception. Tbe judge did not instruct tbe jury not to consider tbe letter as a part of tbe plaintiff’s evidence. His failure to do so was no doubt an inadvertence, as be bad given this caution upon tbe withdrawal of other papers. But if an inadvertence, it was nevertheless error. He should have told tbe jury not to consider tbe contents of tbe letter in making up their verdict. *S. v. Davis,*15 N. C., 612; *S. v. May, ibid.,*328; *S. v. Collins,*93 N. C., 564; *S. v. Crane,*110 N. C., 530; *Toole v. Toole,*112 N. C., 153; *S. v. Flemming,*130 N. C., 688; *Stephenson*v. *Raleigh,*178 N. C., 168; *S. v. Stewart, supra; S. v. Griffin,*190 N. C., 133; *Hyatt v. McCoy,*194 N. C., 760.

Tbe plaintiff’s claim consists of several items, some of which have no connection with others. Tbe letter in question refers to an item of $124 charged for drayage on desks ordered from tbe General Seating Company and paid by tbe plaintiff. Tbe allowance or disallowance of this item will not affect any other item in tbe plaintiff’s account. As an appellate Court, we have no power to amend tbe verdict, but tbe plaintiff’s counsel in bis oral arguments and in bis brief consents to deduct this item from tbe verdict and tbe judgment 'and to this extent to reduce tbe amount of bis recovery. Since tbe verdict and judgment will not otherwise be affected this course may be pursued in tbe Superior Court and a judgment may there be rendered for tbe amount of tbe plaintiff’s present judgment less $124; but if tbe plaintiff does not consent to tbe reduction there will be -a new trial. This accords with tbe principle announced in *Ragland v. Lassiter,*174 N. C., 579, to tbe effect tbat tbe court can allow the appellee to make tbe deduction or, if be does not make it, to submit bis cause to another jury.

Error.