| N.C. | Mar 31, 1910
The facts are stated in the opinion of the Court. The plaintiff seeks to recover of the defendant the sum of $413.81 and interest, due under a contract for installing a system of accounts or bookkeeping for the wholesale grocery business of the defendant.
The plaintiff alleged the execution of the contract, the performance of the services thereunder, and the amount due. The defendant admitted the execution of the contract, and at the trial admitted that if anything was due it was the sum of $413.81; but he denied that anything was due, alleging that the contract was procured by the plaintiff *263 and entered into by defendant upon the distinct representation (273) that the proposed system of bookkeeping would be much more efficient and could be operated with no greater clerical force and more economically than the system the defendant was then using; that he did not know and could not know whether the proposed system would be as economical and efficient as it was represented, and that he entered into the contract in reliance upon the truth of the representations as to the economy and efficiency of the proposed system. Defendant alleges, further, that after giving the system a fair trial for about three months, he learned that it was more expensive and less efficient than his old system, and that he was compelled to discard the system entirely; and that he is advised that the contract is not binding because it was obtained by fraud or mistake, and the system did not come up to the representation or guarantee of plaintiff.
The last paragraph is the only reference made to fraud, and it is insufficient, as the plaintiff contends, to set up that defense, for it fails to allege that the representations were falsely and fraudulently made or that they were known by the plaintiff's agent to be false, or were made with reckless disregard of their truth or falsity, or that they were made with intent to deceive. Cash Register Co. v. Townsend,
The court charged the jury, among other things: "If the plaintiff assured the defendant that the system of bookkeeping which he proposed to install could be worked by defendant's then present office force, and with no greater expense, and that this representation was untrue in fact and falsely and fraudulently made, and that the defendant did not know that it was untrue, and had no means of ascertaining the truth until after the contract was made, and that if you further believe that the defendant gave the system a full and fair trial, and it could not be worked without additional expense, then plaintiff is not entitled to recover," to which the plaintiff excepted. The jury found in response to the issue that the defendant was not indebted to the plaintiff.
If the court had left out this charge the words "and falsely and fraudulently made," the instruction would have been correct. In adding those words, the court placed upon the defendant an unnecessary burden; but the plaintiff cannot complain of that.
The plaintiff relies upon Cash Register Co. v. Townsend,
This is not the case of a sale of personal property. The answer (274) alleges a sufficient defense in setting up a total want of consideration and breach of guarantee, and the jury found the defense good. The plaintiff cannot complain that the jury further found, under *264 the charge, that the representations were "falsely and fraudulently made" over and above the other matters stated in the charge above, which amounted to an allegation of a total want of consideration and breach of warranty.
The court below properly overruled the motion for judgment non obstanteveredicto. That is applicable only where the defense set up is in the nature of a plea of confession and avoidance, and the jury find the fact with the defendant, but in law it is an insufficient defense. Cotton Millsv. Abernethy,
The controversy is chiefly over the facts set up by the answer, and the jury have found them in favor of the defendant.
No error.
Cited: Unitype Co. v. Ashcraft,