#### MORRIS FLEISHMAN v. A. D. BURROWES, Receiver of THE NATIONAL BANK OF FAYETTEVILLE.

(Filed 26 March, 1930.)

1. Estoppel *A*a — In this case held: plaintiff was not estopped by deed from setting ui) claim for damages for destruction of easement.

Where the owner of land adjoining a bank building has been induced by the receiver of the hank to give a release of his claim to an easement in an alleyway which had been closed by the bank under an agreement that a certain sum of money was to be placed in escrow and used to pay damages pending the determination of the rights of the parties: *Held,*the plaintiff is not estopped by his deed from bringing action against the receiver for the damages sustained by him by reason of the closing of the alleyway, the bank having received the benefit of the agreement.

2. Evidence D g — In this case held: testimony was to agreement and not *tó*understanding of party, and was competent.

Where a question is asked the plaintiff as a witness in his own behalf “what was your understanding?” of a contract material to the controversy, *515“what was the agreement?” and it appears that the answer was to the fact of agreement, the admission of evidence thus adduced will not be held for error as relating to the understanding of the witness.

3. Pleadings D a — Demurrer will not bo sustained where technical deficiency in complaint has been cured in reply filed by permission of court.

Under our liberal practice and procedure the plaintiff will not be held down to a technical position of the defendant as to the allegations in the complaint where the plaintiff has been permitted by the court in its discretionary power to file a reply which fully sets out the agreement of the parties, and the overruling of a demurrer will not be disturbed on appeal.

Appeal by defendant from *Grady, J.,*and a jury, at February Term, 1930, of OumbeelaNd. No error.

Tbe following judgment was rendered in tbe court below:

“Tbis cause coming on to be beard at tbis term of tbe court before tbe undersigned judge and a jury, and tbe jury having responded to tbe issues submitted to them, as follows:

1. Is tbe plaintiff, Morris Eleisbman, tbe owner and in possession of a store and lot on tbe north side of Hay Street, in tbe city of Fayette-ville, adjoining tbe bank building and lot formerly belonging to tbe National Bank of Fayetteville? Answer: Yes.

2. In connection with bis lot and store, did tbe plaintiff own and use certain rights and easements in an alleyway and stairway on a space of land located between tbe plaintiff’s store and lot and tbe National Bank Building? Answer: Yes.

3. Did tbe National Bank of Fayetteville tear down tbe stairway and close tbe alleyway in tbe erection of tbe bank building now located on the bank lot? Answer: Yes.

4. Did tbe plaintiff, at tbe request of the former receiver of tbe National Bank, release and convey bis rights and easements in tbe alleyway and stairway to tbe Cumberland Savings and Trust Company, with tbe understanding and agreement that bis rights therein were to be properly adjudicated, and that any damages be may have suffered should and would be collected out of tbe funds then held by R. H. Dye, Charles G. Rose and R. *W.*Herring, trustees, so far as tbe funds might extend? Answer: Yes.

5. Was tbe fund of $2,500, with all accrued interest, placed with tbe trustees to protect tbe rights of tbe plaintiff in tbe event it was decided that be owned tbe easements and rights in tbe alleyway and stairway and bad been deprived of tbe use of tbe same? Answer: Yes.

6. What damages, if any, has tbe plaintiff sustained by reason of tbe destruction of tbe stairway, tbe closing of tbe alleyway and tbe loss of bis rights and easements therein? Answer: $2,500, and interest.

*516It is, thereupon, on motion of Rose & Lyon, attorneys for the plaintiff, considered, ordered and adjudged that the plaintiff do have and recover of the defendant the sum of $2,500, with interest thereon from 18 January, 1928, at the rate of six per cent per annum, and that the fund in the hands of R. II. Dye, Charles Gr. Rose and R. *W.*Herring, trustees, with all accrued interest thereon, is condemned, and the said trustees are directed to apply the same to the satisfaction of this judgment as far as the same may extend, and the defendant herein is taxed with all the costs.”

The following stipulation of counsel appears in the record: “It is stipulated and agreed between counsel for plaintiff and defendant that the only question to be presented to the Supreme Court is the legal effect of the deed from Fleishman and wife to Cumberland Savings and Trust Company, dated 18 January, 1929, and whether the plaintiff is estopped to claim the right to recover the fund of $2,500, held in escrow and deposited in Cumberland National Bank to the credit of R. H. Dye, Chas. G-. Rose and R. *W.*Herring on the date of the deed. Subject to the foregoing stipulation, it is agreed that the foregoing constitutes the record and case on appeal.”

The defendant made numerous exceptions and assignments of error. Defendant demurred *ore teñios*to the complaint and reply. Defendant moved to strike out the reply and certain paragraphs of the complaint, also to certain issues tendered by plaintiff; to the admission of certain testimony; to the refusal of the court below to nonsuit plaintiff at the close of plaintiff’s evidence and at the close of all the evidence; to the charge of the court to the jury, on the third, fourth, fifth and sixth issues, and to that portion of the charge reading as follows:

“But I charge you, gentlemen, as a matter of law, that if the deed from Fleishman to the Cumberland Savings and Trust Company was executed and delivered under the agreement that $2,500 of the money was to be reserved in escrow, that then the execution of that deed does not preclude him from bringing this suit, and has nothing to do with the case whatever. Because, if the jury finds as a fact that the receiver of the old National Bank induced Mr. Fleishman and his wife to execute this deed, in order to perfect the title in their grantee, the Cumberland Savings and Trust Company, with the understanding that a part of the purchase money was to be withheld for the purpose of paying Fleish-man’s damages, then the receiver cannot be heard, gentlemen, to complain now that that deed has been made; because, if the jury finds it was made under these circumstances it was made for the benefit of the receiver, and he cannot now be heard to complain, because of the fact the deed was made.

*517“Tbe fourth issue is: Did tbe plaintiff, at tbe request of tbe former receiver of tbe National Bank, release and convey bis rights and easer ments in tbe alleyway and stairway to tbe Cumberland Savings and Trust Company, with tbe understanding and agreement that bis rights therein were to be properly adjudicated, and that any damages be may have suffered should and would be collected out of the funds then held by R. H. Dye, Charles G. Rose and R. W. Herring, trustees, so far as tbe funds extend? Now, gentlemen, if you find tbe facts to be as testified to by all of tbe witnesses who have gone upon tbe stand, there being no evidence to tbe contrary, it would be your duty to answer that issue, Yes.

“The fifth issue is: Was tbe fund of $2,500, with all accrued interest, placed with tbe trustees to protect tbe rights of tbe plaintiff in tbe event it was decided that be owned tbe easements and rights in tbe alleyway and stairway and had been deprived of tbe use of tbe same?

“If you find tbe facts to be as testified to by all tbe witnesses, there being no evidence to tbe contrary, it is your duty, gentlemen, to answer that issue, Yes.”

Tbe court below overruled all tbe defendant’s exceptions. Defendant assigned errors and appealed to tbe Supreme Court.

*Bose & Lyon for plaintiff.*

*Blackwell & Blackwell for defendant.*

ClaRksoN, J.

Under tbe stipulation of counsel appearing in tbe record, we find tbe only question presented to us for our determination: “Is tbe legal effect of tbe deed from Fleishman and wife to Cumberland Savings and Trust Company, dated 18 January, 1928, and whether tbe plaintiff is estopped to claim tbe right to recover tbe fund of $2,500, held in escrow and deposited in Cumberland National Bank to tbe credit of R. H. Dye, Chas. G. Rose and R. W. Herring, on tbe date of tbe deed ?”

We do not think that plaintiff is estopped to maintain this action. It will be noted that tbe question asked Fleishman: “What was your understanding about tbe $2,500 put up? What was tbe agreement? Answer: Why, be offered to put up $2,500, and we will have a settlement as soon as we get this building straightened out; we would get our people together, our lawyers, and settle this matter up with me, to my satisfaction.”

If tbe question was confined to *understanding,*tbe assignment of error by defendant would prevail, but tbe question was more than un*derstanding*— what *was the agreementf Overall Co. v. Holmes,*186 N. C., at pp. 431-32; 22 C. J., Evidence, at pp. 515, 516. Under our liberal practice and procedure, we do not think that plaintiff can be *518beld down to tbe technical position of defendant as to the allegations in the complaint of plaintiff, the reply sets out the agreement of the parties fully, and the court below had the discretion to permit plaintiff to file the reply. *Sams v. Cochran,*188 N. C., at p. 733. From the view we take of this action, we see no new or novel proposition of law presented by the appeal. In the judgment of the court below we find

No error.