McCall v. Gloucester Lumber Co.

Tbe record discloses many interesting questions that we need not now consider.

“A party is not permitted to try bis case in tbe Superior Court on one theory and then ask tbe Supreme Court to bear it on another and different theory. Warren v. Susman, 168 N. C., 457.” Shipp v. Stage Lines, 192 N. C., at p. 478; In re Will of Efird, 195 N. C., at p. 84.

The theory upon which the court below tried the case: The evidence of plaintiff tended to establish the contract as alleged by him. The probative force of the evidence was for the jury and they found the contract was as contended for by the…