dissenting. The plaintiff brought suit to recover an amount alleged to be due him for providing rooms, lodging, and board for the defendant’s testator and for service rendered in a sale of his land. The jury returned a verdict upon an implied contract, awarding the plaintiff $162.50 with interest for his service in procuring a sale of the land and $360 with interest for board, care, and maintenance. In answer to the seventh and eighth issues the jury found that the plaintiff’s action was not barred by the three-year or the one-year statute of limitations.
The defendant moved as provided in C. S., 567, for judgment as in case of nonsuit. The court denied the motion, the defendant excepted, and the plaintiff recovered a judgment from which the defendant appealed.
The plaintiff brought an action against J. A. Southerland in which the summons was issued on 27 February, 1922. Judgment of nonsuit was entered in December, 1926, and the bill of cost was paid. On 20 January, 1927, the plaintiff brought suit against the defendant, executor of J. A. Southerland, on the same cause of action, and at the August Term of 1927, the action was dismissed. On the plaintiff’s appeal to the Supreme Court the judgment was affirmed at the Spring Term of 1928. On 12 March, 1929, the plaintiff commenced the present action against the defendant on the same cause. It was heard and determined at December Term, 1929, of the Superior Court of Duplin.
The only question considered in the opinion of the Court is whether the plaintiff paid the cost incurred in the second action before instituting the present suit, as required by C. S., 415. If he paid it his cause of action is not barred. On this point the record evidence gives us no information; but Judge Daniels instructed the jury to find, if they believed the evidence, that the plaintiff?s action was not barred by the *115statute of limitations. He set out bis reason for giving this instruction: “At tbe close of tbe testimony, tbe court stated to counsel on botb sides, that as be understood tbe evidence be would have to charge tbe jury, that if they believed tbe evidence, they would decide that plaintiff’s action was not barred by tbe statute of limitations. At that time, tbe court understood there was evidence, that tbe cost in botb nonsuits bad been paid before tbe pending action bad been instituted. To this, counsel, all of whom beard this statement, made no response, and did not argue this phase of tbe case to tbe jury, and tbe court, at tbe conclusion of tbe argument, charged tbe jury as be bad intimated, without objection or question on tbe part of counsel. Their first objection to this instruction is contained in tbe exception to this part of tbe charge, contained in tbe defendant’s case on appeal, and in their exception to tbe refusal to nonsuit.”
His Honor informed tbe attorneys that as be understood tbe evidence be would be compelled to give tbe directed instruction. He did so at tbe close of all tbe evidence; at the time tbe defendant was required to renew bis motion for nonsuit and to give tbe reasons for bis motion. No doubt bis reasons were given. Tbe alleged right of nonsuit turned upon tbe question whether tbe action was barred, and whether tbe action was barred turned upon tbe question whether tbe cost bad been paid. It is perfectly obvious that Judge Daniels understood from tbe evidence that tbe cost bad been paid. He said so: “At that time tbe court understood there was evidence, that tbe cost in botb nonsuits bad been paid before tbe pending action bad been instituted.” To understand a thing is to comprehend or to make out tbe meaning of it; not to guess at it. When be “understood there was evidence that tbe cost in botb nonsuits bad been paid” be evidently understood there was evidence before him to this 'effect. This is tbe natural and reasonable construction of bis statement, for it is bard to see bow be could have imagined there was such evidence or could have “labored under a misapprehension” as to material evidence on tbe really vital point in tbe case.
It is said, however, that tbe record imports verity and that it does not disclose any evidence that tbe cost bad been paid. When tbe trial judge before instructing tbe jury stated in effect, in tbe presence of counsel, that be understood tbe evidence to be that tbe cost bad been paid and that for this reason it was bis duty to give tbe directed instruction on tbe last two issues, and this statement is made a part of tbe case on appeal, we may safely apply tbe words of Holce, J., that “in support of tbe validity of tbe verdict and judgment it is proper for tbe appellate court to assume that a fact of this character was brought to tbe attention of tbe jury in some permissible way,” although it may *116have been inadvertently omitted from tbe record on appeal. Harrington v. Wadesboro, 153 N. C., 437, cited and approved in Harper v. Bullock, 198 N. C., 448.
When counsel made no response to tbe statement set out above it was natural for the judge to conclude that there was no difference of opinion as to the evidence, and that they acquiesced in what be said. Under these circumstances tbe defendant should be bound by tbe instruction of which he now complains. The legal effect would be the same if he knew that an error of fact had been committed and remained silent when he was impliedly, if not expressly, invited to speak. It is said that we can “know judicially only what the record discloses.” This is true if the word “record” is intended to include the case on appeal; but the case on appeal discloses facts which estop the defendant. The controlling principle is not the verity of the record but the acquiescence of the defendant in the judge’s statement of what he understood the evidence to be; and acquiescence imports and is founded on knowledge and consent.
In the appellee’s brief it is said, “There is no contention that the cost in both nonsuits had not in fact been paid, as indeed there could be none.”
For the reasons given I do not concur in the opinion of the Court.
CONNOR, J., concurs in dissent.