Opinion
(Filed 24 February, 1937.)
Appeal and Error § 38 —
Where the Supreme Court is evenly divided in opinion, one Justice not sitting, the judgment of the lower court will be affirmed, in accordance with the usual practice.
APPEAL by plaintiffs from Barnhill, J., at October Term, 1936, of WASHINGTON.
Sidney A. Ward and H. S. Ward for plaintiffs, appellants.
W. L. Whitley and Z. V. Norman for defendants, appellees.
Civil action for accounting.
Plaintiffs allege that in 1933 they secured a loan of $9,250 from the Home Owners Loan Corporation with which to pay off an indebtedness due the defendant, said indebtedness being secured by deed of trust on their residences; that in taking the bonds of the HOLC the defendant credited plaintiffs with only 85 per cent of their face value; wherefore, they sue for the remaining 15 per cent, amounting to $1,387.50, with interest and costs.
The defendant denies liability, pleads express agreement and ratification on the part of plaintiffs, prior to act of Congress inhibiting such agreements, and contends that plaintiffs may not accept the benefits of said agreement and at the same time repudiate its burdens; that if they would rescind they must do so in toto. Starkweather v. Gravely, 187 N.C. 526, 122 S.E. 297.
From verdict and judgment exculpating defendant from liability, the plaintiffs appeal, assigning errors.
One member of the Court, Schenck, J., being absent, and the remaining four being equally divided in opinion as to whether the matters of law or legal inference, debated on argument and brief, are presented by the record, the judgment of the Superior Court, accordant with the usual practice in such cases, is affirmed and stands as the decision in this case, without becoming a precedent. S. v. Swan, 209 N.C. 836, 183 S.E. 285; Sessoms v. R. R., 208 N.C. 844, 182 S.E. 112.
Affirmed.