Price v. Conley

BRITT, Judge.

The sole issue submitted to the jury was: “Did the plaintiff, by his action, condone the action of defendant, and thereby waive his right to assert the breach on the part of the defendant?” The jury answered the issue in the negative.

In his answer, defendant pled waiver or estoppel on the part of plaintiff. G.S. 1A-1, Rule 8 (c) makes waiver an affirmative defense; on an affirmative defense, the burden of proof lies with the defendant. Therefore, it would appear at first glance that the allowance of the motion for judgment notwithstanding the verdict in this case violated the…