Sumter County Board of Education v. Alabama State Tenure Commission Court Opinion

    458 276 SOUTH EASTERN

so taken, obtained or withheld, r. e., know-
ing at the time he received it that another
person had taken. obtained or withheld the
card lrom the person, possession, custody or
,lontrol of another without the cardholder's
consent and with the intent to use it. Thus,
the necessary implication from the use of
the qualifier "so" is that when a defendant
is eharged with a violation of the receiuing
portion of the statute, he must have re-
ceived a card from a lhird party who also
intenrled to use it. -{lthough this interpre-
tation hinges upon a linguistic technicality,
criminal larvs must be strictly construed in
fr',',rr ,rl the 'lcfenriant. .State r.. Ross, ZiZ
N.C. 6?, i57 S.E.2d 712 r1967): State v.
Brcrtn.:6f N.C. 191, 1{1 S.E.?t Blt (196i);
State r'. Martin, T N.C.App. 532, 1?3 S.E.2cl
{7 ( I9?0). Justice Huskins' pronouncement
remains true-the itatute almost rlefies
analysis.

[5, 6l The indictment herein a[tempts to
charge rlefendant under the receiving por-
tion of the subsection. In order to charge
receiving under the present wording of the
statute, it must he alleged, among orher
elements, that at the time of receipt the
defendant knew that the financial transac-
tion card had been taken, obtained or with-
held from the person, possession, custody or
control of another without the cardholder's
consent and with the intent to use it. The
present indictment alleges: "At the time of
receiving the credit card, the defendant
knew that a person had unlawfully, wilful-
ly, and feloniously taken, obtained, and
withheld the credit card from the percon,
possession, custody, and control of J. V.
Turner without [the] consent of J. V. Turn-
er." The indictment fails to allege that the
defendant knew that the card had been
taken, obtained or withheld with the intent
to use it, an essential element of the crime
for which defendant was tried. The indict-
ment thus fails to charge a crime, and de-
fendant's motion to dismiss should have
been allowed. N.C.Gen.Stat. tSA-9%(aXb)
and (e). See a/so State v. Morgan,226 N.C.
414, 38 S.E.zd f66 (1946). The sfate may, if
it so elects, proceed against defendant upon
a sufficient bill of indictment. Statc v.
Ingram, ffl N.C. 138, 15? S.E.% 119 (196?).

REPORTER, 2d SERIES

We find it unnecessary to discuss defend-
ant's remaining arguments.

Judgment arrested.

CLARK and ARNOLD, JJ.. concur.

-lN Paut OVERTON, Jr.

v.

MLDSBORO CITY BOARD OF
EDUCATION.

No. E08SC756.

Court of Appeals of North Carolina.

April 7, 1981.

OVERTON v

without PaY was not resPonded

t"-ii.ri*"a for neglect of dutit

.uo*tt"a bY substantial evide

l{'tis-uz, 115-14(n), 15oA-

In APril 19?9, Plaintiff' a car'

*iitt tno." than fifteen Year:l' e:i

il"'-S".,t Carolina Public sctr'

*^ .ttu.g"a in a bill of indic

f"ionv diug charges' At the

i"ai.i*"ntl Plaintiff was emPlr
'f'eJunt 

as a PhYsical educatior

ili;;i; School South' From tt
,oo"u^ that Plaintiff first lea

indi.tment through a radio neu

,"nt on TuesdaY morning' 24

eii"i.utting his minister' Plain

telephone call to Bill Charlton'

"i liiJar" School South' to tell

*"s in trouble and would not

that daY and that, indeed' he t

how long it would be before

able to Ltrtn to work' Late

ins, Ptin.iP"l Charlton telePh

JJhnson, tire SuPerintendent

Uo- CiiV Schools, and infor

plaintiff's message' During t
son and the rest of the scho'

heard the news of the indicl

plaintiff.

Plaintiff did not return to v

week or, indeed, for the res

On 26 APril, two daYs after

learned of hi. indittrnent' Plai

SuPerintendent Johnson to '

the charges against him' to P

."n"u, 
"nd 

to review the s

with teacher disntissals'

On or about 3 MaY 1979'

Johnson called Plaintiff to
requested his resignation ef
than 8 MaY. Plaintiff refur

ter dated 
-S 

U"Y requested

sence without PaY. On 1

received no resignation lettr
cially recommended to I

Plaintiff be susPended with<

aPProPriate dismissal Proce
ed for neglect of dutY. De

a resolution susPending P

Career teacher appealed from city's
board of education's order dismissing teach-
er. The Superior Court, Wayne C,ounty,
Elbert S. Peel, Jr., J., reversed board's deci-
sion, and board appealed. The Court of
Appeals, Hill, J., held that board's decision
that such teacher, who, with acquiescence
of principal and superintendent of schools,
remained away from school for 16 days
after he was indicted for felony drug of-
fenses, should be dismissed for neglect of
duties was not supported by substantial evi-
dence.

Affirmed.

Hedrick, J., dissented and filed opinion.

Schools 6l4l(5)
In proceeding in which city board of

education ordered dismissal of career tcach'
er, decision that such teacher, who, with
acquiescence of principal and superintend'
ent of schools, remained away frcm school
for 16 days after he was indicted for felony
drug offenses and whose request for lesve



;RIES

ssar!' to discuss defend-

guments.

rd.

INOLD, JJ., concur.

)VERTON' Jr.

Y.

O CITY BOARD OF

)UCATION.

r. 808SC756.

eals of North Carolina'

pril 7, 1981.

:her apPealed fr"om cit1"s

on's order dismissing teach-

ior Court, WaYne CountY,

r., J., reversed board's deci-

t appealed. The Court of

,, held that board's decision

er, who, with acquiescence

I superintendent of schools,

from school for 16 daYs

rdicted for felonY drug of'

be dismissed for neglect of

rupported bY substantial evi-

, dissented and filed oPinion

v" L v' 
cne as' n'c'epp" 276 s'E'2d'158

without pa]. was not respon<red to, should ;;;;;;"r"0' :1 i:?1"" 
or dutv' Super-

be dismisse. to," n"gr".i-'oi drti", wa^s l1t 
'intlna"it Johnson notified plaintiff of this

iTT[:i,l,,il:;pt"i,iltrHi "sr t..T;i*** t'1,",?,|rJ*li:}iiq$i

ovERroN v' GoLDSBoIg-t:'::..'D' oF ED' N' c' 459

IELvrrrrrrlr'...'- 
:ct of duty and inadequate

(5)

ling in which citY board of

rea"dismissal of carcer teach-

rat such teacher, who, with

i princiPal and suPerintend-

remained awaY frtm school

:er he was indicted for felonY

and whose rcquest for leave

tn April le?e, plaintirr," :"i:-":-,T:^'::: ,T';#;;:; entitled to a review berore a

with more than fifteen ''""'*' "*p"'iencein ffi;;il; fanel'of .the 
Professional Re-

Ti lill"f # * l'l *';'l* Jl',I.:ff ffi Til':n' fi . .'"H'J[""J" !H y, :i
felonv drug charges' ei tt't time of his ffi; ;;;"rties stipulated that the charge

fi';i,;;;: p]uinrlri *u' "'ptov"d 
bl de- ;;"'i;ilfi;i" p"iro''nu"' had been

fendant as a physica'J'*tion-teacher at ;"#;"";*t the hearing' the panel con'

Midtlle School South. f.o, the record'. it ctra"a tnat thc charge of neglecr of duty

il;:;.1il'piuinr'iir first learned of his ;;:'r;i;;,e and substantiated'"

i::1tx"l':::::i'#:H:il!lli$i"1 Nevertheress' superintendent Johnson

Ar re r cau i ng h i, *i' i#'J:*pr ^?'i 
ii pi"*a " fi :ffii*l1 I i:t:l-f'li"'B1:fl#'

l"i.nn"". "iu 
to Bill Charlton' the prtnctpat 

lf#'"ii",ri"tirr:. t"qr"tt, defendant held a

[:"$ illiil.JllT':ffi ::l f 4 i;,i lLli,lJ':'"'li:ii'',?iii"' i' f i'" "a ""''
that da1. and that, ird;;;: i" dia not rnn, ll;;ffi.;;iJ"-. i rt"' hearing evidence

hou long it u'ould ;;i;;; 
..i' 

on'l'l u" ;ffi' ;;;';n' charlton' and plaintiff' the

able to t€turn to *otft Later that-m'orn- ;"f;il;;; ;""1''' Reoort and Order find-

i,i-,,,, 
". 

*; ; 
^., rtl,Tfru ilml F 

^' 
rj.;;t* "i*.lrHr',ffi '1'T 

fi
'Jil'tl;,ltli:ffi:ffi:;''J'i'i', "i ii'i""a rrom emprovment

plaintiff's message , 
il"'* tlt &t' 

'11:- From defendant's order' piaintiff appeal-

son and the rest o, Ii,. ..io,,r communitv 
",r',;",;"-'a\javne. 

countl' Superior court

heard the news of tit t'iiti"tt againsi 
"lt-'iti 

*"taered the transcript of the hear-

plaintiff . 
LIr( rrrur\""-' 

, 
- 

."^, ;ru,;;;i t"i:.. and concluded that the

piaintiff did not return to work later that ;;:;t l8ainsl lrlaintiff were not substan-

week or, indeed' i"'' tit rest of the -vear' ;ffi Fiom the court's order reversing its

on 26 April' '*" 
u"''l'"r* pi"intlri i'"a a"tition' defendant appeals'

ieaft-;i his indictmlnt' plaintiff met with 
chambers, .r"'r, li:fi;il,t"ffifiti;l5il;;,d""i.1:lliil ;",*::L l'il""l, #i1' . 

^.,, 
r", I i,

I:911? ii',lilJ* ";; ';;';;' dearing appeilee

with teacher dismissals. Taylor, Ivarren, Kerr & walker by Lind-

on or about e ru"r' rgzg' Superintendent t"'At';;;; i" "ia 
Gordon c woodruff'

Johnson called pt#trii'i" ttrl "rfice'and 
tiatu"t"' for defendant-appellant'

.""r".,"a his resignation effective -n9 
lu't"t

|[H=*fi";' Plaintrff refused' and bi let- HILL' Judge'

**}*ir,u.:;* .*I#,pi,,i:*: '*rsrdt[h#ffi[i*ffi1[iilTrf,S#;;:'#,1 F fiilt}.fiii:i';;;;;i'r'n" 
p"'.

appropriate ai"ni*l"i;;;-#; u" init''1: ;;;;"i R'*l"o: committee' the court

edrorneglectri',i,r"'i"i""i"11*.g,1'o;;";i'1g.':i!.:l"argumentsofcounsel'
a resolution "'*"'l't"*"''"1'iiri 

witirout Judge Peel stated:



460 N.c. 276 SOUTH EASTERN

Upon a full review of the whole record of
the case, and having given independent
consideration to the Report of the Profes-
sional Review Committee, the court is of
the opinion, and so holds, that the charges

brought by the Superintendent against
the petitioner/appellant are not substan-
tiated. '

lt is to this finding that defendant excepted
and assigned error, arguing that the deci'
sion by the Board of Education was sup
ported by substantial evidence and should

have been upheld.

At the outset, we note that the trial
judge's order did not track the language of
G.S. 150A-51, the statute which requires
the judge to set forth the reasons for re-
versing the Board's decision. We have,

however, read his order to mean, in the
applicable statutory language, that the de-

cision by the Board of Education was un-
supported by substantial evidence, G.S.

150A-51(5). Appellant has also read the
order to state this. Our review of the trial
court's action is limited, therefore, to the
question of whether the trial court erred in

finding that the Board's decision was not

supported by substantial evidence.

This Court, having reviewed the whole

record concerning plaintiff's alleged neglect
of duty, agreed with the lower court and

holds that the deeision of the Board was not
supported by substantial evidence and that
plaintiff is entitled to reinstatement to his

teaching position with the Goldsboro City
Schools.

In reaching this result, we first review
the pmper role of the lower court in this
case.

Plaintiff, in appealing to superior court
for a review of defendant's decision to ter-
minate his employment, was acting pursu'
ant to G.S. 1f5-142(n). The applicable
scope of judicial review of defendant's ac'
tions is set forth in G.S. 150A-51 which
allows the lower court to revenrc a school

board decision if:
[t]he substantial rights of the petitioners

[here the plaintiffl may have been preju-
diced because the agency findings, infer-
ences, eonclusions, or decisions are:

REPORTER, 2d SERIES

(5) Unsupported by substantial evidence

admissible under G.S. 150A-29(a) or G.S.

150A-30 in view of the entire record as

submitted;

The predecessor statute to G.S. 150A-51,

G.S. 14iI-315, was analyzed in a context

analogous to the situation before us in the

Supreme Court,lecisiotf?hrrp"o, v. Board

of &lucation 292 N.C. .106, 233 S.E.2d 538

(197?). In Thompson, Justice Copeland

wrote:

This standard of judicial review is

known as the 'whole record' test and

must be distinguished from both de novo

review and the'any competent evidence'

standard of review. [Citations omitted.]

The 'whole record' test does not allow the

reviewing court to replace the Board's
judgment as between two reasonably con-

flicting views, even though the court

could justifiably have reached a different
result had the matter been before it de

novo . .. [Citation omitted.]. On the oth-

er hand, the 'whole record' rule requires

the court, in determining the substantiali-
ty of evidence supporting the Board's de'

cision, to take into account whatever in

the record fairly detracts from the

weight of the Board's evidence. Under
the whole evidence rule, the court may

not consider the evidence which in and of

itself justifies the Board's result, without
taking into account contradictory evi'
dence or evidence from which conflicting
inferences could be drawn. [Citation
omitted.l

Id. at 410,233 S.E,2d at 541.

In reviewing the whole record b€for€ us'

it is important to note that the allegations

plaintiff neglected his academic duties re-

volve solely around the events which oc'

curred aftar ?lL April 19?9, the date plain'

tiff heard about the criminal chargfs

against him. The recotd, which contained

plaintiff's personnel file, showed that prior

to the period in question, plaintiffs per'

formance in every cat€gory had consist€ntly

been rated satisfactory, apparently th€

highest rating available on the "prinsipal t

OYERl

Evaluation of Teachers" fr

1972, his supervising princip
was doing a "commendable ,

was a "conscientious teache

academic year 19?2-19?3, I

pal found his work "alwa;
Nothing in the record indi<

evaluation until plaintiff er
lems in the spring of l9?9.

Superintendent Johnson's
cerning plaintiff's neglect r

therefore, on the issue of pl
ing away from school fror
until the Board's suspens
without pay on 10 May l9?!
its 12 December i979 ordr
that neither the principal r

tendent gave plaintiff pern
himself from his teaching
him to stay at school. Th
found that plaintiff's decisi
to his teaching duties wai
constituted neglect of duty

In addition to being com
to plaintiff's prior "commer
ance, these findings of fat
any weight to the followin
eontroverted evidence: Du
of time from 24 April to 1

Principal of Middle School
Perintendent Johnson were
the plaintiff. Neither of
esked or told plaintiff to
Neither advised him that
lxing considered neglect o1

duties. It appears that
quiesced in plaintiff's decisi
to the classroom. Furtherr
cipal Charlton and Suoerin
admitted at the hearing thz
may not have told olaintifl
that it would be in the
Plaintiff's students that pla
to the classroom while cha
tng against him. The rcc,
lhat plaintiff's continued r
to his concern for what r
rtudents.

. There was also uncontn
thet plaintiff requested lei
rmm the rreeord, it appearattaa



OYERTON y. GOLDSBORO CITY BD. OF ED.
Clte &s, N.C.APP.,276 S.Ezd '158

N.c. 461iERIES

d by substantial evidence
er G.S. l50A-29(a) or G.S.
'w of the entire raecord as

statute to G.S. 150A-Sl,
rs analyzed in a context
situation before us in the
)cision, Thompson v. Board
I N.C. 406, 233 S.E.2d 538
mpson, Justice Copeland

'd of judicial review is
'whole record' test and

rrished from both de novo
'any competent evidence'

;iew. [Citations omitted.]
,rd' test does not allow the
t to replace the Board's
tween two reasonably con-
even though the eourt

; have reached a different
matter been before it de
ion omitted.l. On the oth-
'hole reeord' rule requires
ermining the substantiali-
,upporting the Board's de-
into account whatever in
irly detracls from the
Board's evidence. Under
ence rule, the court may
evidenee which in and of

he Board's result, without
count contradictoq' evi-
ce from which conflieting
d be drawn. [Citation

l.Zt at 541.

e whole record before us,

note that the allegations
I his academic duties rne-

nd the events which oc-

pril f9?9, the date plain-
: the criminal charges

record, which contained
el file, showed that prior
question, plaintiffs per-
category had consistently
factory, apparently the

'ilable on the "Principal's

Evaluation of Teachers" form. In March never resPonded to this reguest, but, in-

19?2, his supervising principal found that he stead, sought plaintiff's dismissal. In this

was doing a "commendable job" and that he regard, the case before us is clearly distin-

was a "c;nscientious teacher." During thc guishable from two cases cited by defend-

academic year 19?2-1973, the same princi- ant. Miller v. Noe, 432 S.W.2d 818 (Ky.,

pal found his work "always satisfactor.v." 1968), and Mitler v. Board of Education of

l,Jothing in the record indicated a contrary Je{fercon County, Ky., il FRD 393 (1971)'

evaluation until plaintiff encounlered protr aff'd. per curiam 452 F.%J.894 (Sixth Cir.

lems in the spring of l9?9. 19?i), both dealing with the same teacher

Superintendent Johnson's allegation con- dismissal' The Miller cases dealt with a

cerning plaintiff's neglect of duty focused, teacher's taking a leave of absence despite

therefore, on the issue of plaintifi's remain- the fact that he had requested' but had

ing away from schtxl] from 24 April 1979 been denied, ieave by the Board of Educa.

until the Board,s suspension of plaintiff tion. The courts held that this action con-

without pa), on 10 May 19?9. The Board, in stituted a vacation of the teacher's position

its 12 December 1g?g order found as fact and that the teacher was not entitled to

that neither the principal nor the superin- reinstatement' ln the case sub judice'

tendent gave plaintiff permission to absent thert' was no evidence that the Board de-

himself from his teaching position or told nied plaintiff's request for leave or' indeed'

him to sta] a1, school. The Board further that it ever acted on it'

found that plaintiff's decision not Lo return The case of Board of Mucation v. Math'

to his teaching duties was volunLari' and es--q, 149 Cal.App.?t 265, 308 P.zd 449

constituted neglect of dutl'. (195?), is also inapposite. The teacher in

In addition to being completell' silent as Mathert's was dismissed trecause she failed

to plaintiff,-" prior .,commendabk." lrcrform- on several occasions to return to the class-

ance, these findings of fact failed to gire room after having lxen ordered to do so'

an1' weight to the following clear and un- Plarntiff in this case' was never told to

contro*erted evidence: Duiing the. period return to the classroom' Furthermore' Su'

oftimefrom}AApriltol0Mal''lroththeperintendentJohnsontestifiedthatitwas
Principal of Middie School South and Su- normal practice to give an employee an

perintendent Johnson werc in contact u'ith opportunitl' to correct a situation before

the plaintiff. Neither of these twc, men seeking a dismissal' Plaintiff never had

asked or told plaintiff to return t(, '{'o.}, that opportunitl'

Neither advised hin, that his absence'uas \4'hile we agree with defendant that the

being considered neglect of his contractual re;rc,r'. of the panel of the Professional Re-

duries. It appears that both men ac- r'ieu Committee should not have been solell'

quiesced in ptaintifi's decision noi to return determinative of the issue of plaintiff's ne-

to the classroom. Furthermore, both Prin- glect, we find that the record before us

cipal charlton and Superintendent Johnson suppo!'ls its conclusion that:

admitted at the hearing that, although rhei' Mr. Overton made good faith efforf m

ma1. not have told plaintiff so, thel agreed communicate with his superintendent and

thai it would be in the besr interesr. of principal and to cooperate with them.

plaintiff's students that plaintiff not relurn He was,not told that he should return to

t6 the classroom whiie charges were pend- the classroom under these circumstances.

ing against him. The record also is ciear A reasonable man could assume that his

that plaintiff's continued absence was due continued absence was approved until he

to his concern for what was besr for his was instructed otherwise'

students. In reviewing the facts of this case, this

There was also uncontroverted evidence Court has been acutely aware of the prob-

that plaintiff requested leave without pal'. lems presented to a local school board by

Frorn the record, it appears that defendant the events surrounding plaintiffs indict-



462

Alfirmed.

WEBB, J., concurs.

HEDRICK.,I.,

HEDRICK, Judge, rlissenting:

I disagree with the majority that, 'Iutige
Peel's statement that "the charges itrought
by the Sup€rintendent against t.he petition-
erlappellant are not substantiated" is ihe
same as the "tlecision of the Board of Edu-
cation is unsupported by substantiai evi-
dence...." G.S. S 150A-51 requires the
reviewing court, if it reverses the ilecision

of the Board, to set down in writing its
reasons therefor. My reading of that por-

tion of the opinion in Thompson v'. Wake

County Board of Education, 292 N.C. -106,

233 S.E.zt 538 (1977), quoted by the majori-
ty is that if, upon review, the "whole rec-

ord" presents reasonably conflicting views,
and the Board's decision represents one of
those views, it is the duty of the reviewing
court to affirm. Otherwise, the reviewing
court would merely be substituting its own
decision for that of the Board. In my opin-
ion, Judge Peel merely substituted his own
decision for that of the Board when he

stated that "the charges brought by the
Superiniendent against the petitioner/ap
pellant are not substantiated." If Judge
Peel, after reviewing the "whole record,"
had concluded that the Board's decision was
unsupported by substantial evidence and re-
versed, the Board would be informed
wherein and how it erred, and we could
study the "whole recotd" and determine

276 SOUTH E.{STERN REPORTER. 2d SERIES

ment. It is, at best, a difficult situalion for whether the reviewing court erred. In er.
school officials, teachers, and students. It sence, Jutige Peel conducted a r/e novo hear-

wnuldappear* hSl'gisl thl't plai4tiff's ac- rng t'rom '-he i'ecord and made his own

tigI_il iqq!9*L!g_q_]qaue1! 4b 9g199_un1il ,lecision rrased upon the evidence in thet
he could be cleared of criminai--c,h4rgeg was record. irnd the ma.lority has reviewed

the rnglqJ1[deLt_loufie ef a!-tion. In light Judge Peel's ,le novo decision and affirmed
of all the evidence concerning plaintiff's I v,lte to vaca.,e t-he ,;njer from which :he
general performance and, more particular- appeal was ,,aken to this Crrurt, and .,o

ly, concerning his performcnce, fr,rm ?l remand the case io the superior court for r
April to 10 )Iay 19?9, this Court finds that review of the whole record to rletermine
delgndanrs-decisis+-to rlismiss plaintiff was whether that record presents reasonably
not sgpported -lry subsl-aUi-al evirience. conflicting views and whether the rlecision

The decisioi of the lorver ,-'ourt is. there- ,rf rhe Board represents one of those views.

rnd if it does, affirm, but if it does not.

!"everse and set down in writing whenein
t,he Boarrl erred within the parameters of
(1.s. \ 1;0.\ 51.

l,arry W. COLEY and Judy B. Coley.
his wife

v.

Curtis R. EUDY, Sr. and Elizabeth
W. Eudy, his wife.

No. 8019SC658.

Court of .A,ppeals of North Carolina

April 7, 1981.

Purchasers of new home brought sutt

against vendors for breach of confact o/

sale agreement, and for breach of exprer
and imptied warranties with respect to coo-

dition of the home. The Superior Court

Cabarrus County, Thomas W. Seay, Jr' J'
entered judgment for purchasen on t!
breach of contract theory, and wife t:f
appealed. The Court of Appeals. Arnoto' e-'

held that: (1) where ,uii'*as tlecided ''
favor of purchasers on the breach of coat

tract theory, facts that evidence pt*'"nf
by pureha-sers tlid not support alleg'atior tl

ourchasen' comPlirint with re'

orv of breach of exPress and

onti"., end that Purchir'sers '

their comPlaint to conform tc

*hich suPPorted onlY the brer

theor-v, ,iid not require a dil

r!) purchasers were entitled

en rmount equal to t'he 'lt
forcclosure ol their ncw homt

equity in the home the1" cor

,lon. and not the rlifference

chasers'cost for the new hot

narket ualue, as instructerl

and (3) although ihere 
"ras

rupport recover)' for Purehas
rl' breach ,rf imPlierl antl e'

'.ts.,:virl€ncc',1ils .-tuifit'ent
'r)!('rv fr)r 1;urchlsers ()n t ''l
)f ,r{)ntruct bv vcnrl,lrs ,lf !h.
Trake mortgage paYmenis
:''lrmer home: thereiore, ''

'v:ts lr Party t-o t"he (:r)nLrac

"1'n(ior, she iva-s iiable ior '

'rv the brcach of thet ':t-intr:

New trial orderetl.

l. Pleadins e237(1)
Better practice is to a

to that they actually refler
rccovery raised by the evid

1 Pleading *237(2\
Where suit by purchas

,lorr was decided in favor r

r breach of contract theor
,hnce presented by purcha:
Pon allegations in purct
Itth respect to a theory t
rod implied warranties, anr
,lirl not amend complaint t,
rvidence, which supported
of eontract theory, did not
eot rt'sult. Rules of Civil
rtb). c.S. S lA_1.

I Drmeges Fl20(l)
A party who was injur

of r eontract is entitled to
iajuries sustained and ir