35 N.C. 404 | N.C. | 1852
Trespass on the case, in which the plaintiff declared against the defendant for misrepresenting the title of the plaintiff to certain real estates, upon an execution sale of the same, whereby it sold at a great sacrifice, to the plaintiff's damage.
Upon the trial the plaintiff, after showing that he was the owner of certain lots in the town of Nixonton, and that certain creditors of his had obtained judgments against him and taken out executions therein and delivered them to the sheriff, proved that the sheriff levied upon the said town lots and lands and offered them for sale; that the defendant was present and bid $1 for the lots.
Whereupon one Pritchard, who testified to those facts, bid $5, and the defendant then bid a small sum above that, and Pritchard made another bid of $10, when the defendant remarked to him that he, the defendant, had a trust on the property in favor of his father's estate for more than it was worth, and that he was bidding only for the purpose of getting possession, and then bid 50 cents more, and it was knocked down to him, Pritchard declining to bid any further, in consequence (405) of such representations. Pritchard stated further that the plaintiff was standing very near him at the time when the defendant made the representation above mentioned, and, as it was made, pressed his arm. Plaintiff's counsel asked the witness what was his impression as to the meaning of the plaintiff by pressing his (witness's) arm. The question was objected to by defendant's counsel and ruled out by the court. Plaintiff's counsel, by the permission of the court, asked the witness whether he desisted from bidding in consequence of the pressure of his arm by the plaintiff, but before the witness answered it the counsel withdrew it. Much other testimony was given on both sides, which it is necessary to give, as the only questions raised on the motion for a new trial are presented in the foregoing statement.
Defendant's counsel contended that his remark at the sale had been misunderstood by the witness, but if it were taken to be true, it, in connection with other circumstances, showed that plaintiff and defendant had an understanding with each other that the defendant should purchase the property at an under-value and, afterwards, upon a resale, give the plaintiff the benefit of the advanced price, and that if such were the case, the plaintiff could not recover.
Counsel further contended that the plaintiff had failed to show that any person was willing to give more for the property at the execution sale than was bid by the defendant. But the counsel did not, in their argument to the jury, remark upon the withdrawal by plaintiff's counsel of the question put to the witness Pritchard, as above stated. The court charged the jury that if the plaintiff had agreed with the *277 defendant that the latter should, by making a misrepresentation of (406) his title, purchase the land at an under-value for plaintiff's benefit, he could not recover. The court then called the attention of the jury to the different circumstances relied upon by the defendant, among which was the pressing of the witness Pritchard's arm, and remarked that they might consider it in connection with the question put and withdrawn by plaintiff's counsel.
The jury returned a verdict for the defendant, whereupon plaintiff's counsel moved for a new trial because the court had rejected the testimony of the witness Pritchard's impression as to the meaning of the plaintiff in pressing his arm, and also because the court had stated to the jury that they might take into consideration the fact that plaintiff's counsel had asked and then withdrawn the question whether the said witness had desisted from bidding in consequence of the pressure of his arm by the plaintiff, when defendant's counsel had omitted to remark upon it. The motion was overruled, and a judgment given, from which plaintiff appealed. We do not perceive any error committed by his Honor in the court below, either in rejecting the testimony of the impressions of the witness Pritchard or in calling the attention of the jury to the question put by plaintiff's counsel and then withdrawn by him.
As to the first point, it admits of no controversy. The general rule is that a witness must speak to facts, and opinion, as evidence, is pretty much confined to questions of science, art, or skill in some particular branch of trade, and to cases of sanity and the like. These are excepted cases, and in no instance that I know of has such an opinion as required in this case been permitted. The witness was requested to state his impression from an act of the intention of another person in that act. It was nothing but an opinion.
Plaintiff's attorney, by the permission of the court, asked the (407) witness Pritchard whether he desisted from bidding in consequence of the pressure of his arm by the plaintiff, but withdrew the question before it was answered. In order to answer properly the second exception, it is necessary to look at the point in issue between the parties. The defense to the action was that plaintiff and defendant were acting in concert at the sale, upon an agreement that the defendant should purchase the property at a small price, so that upon a resale there might be a surplus for the benefit of the plaintiff. The case states that, in commenting upon the defense, his Honor called the attention of the *278
jury to the different circumstances relied upon in the defense, among which was the pressure of Pritchard's arm, "that they might, in connection with it, consider the question put and withdrawn by plaintiff's counsel." In this there was no error; it was a fact transpiring in the course of the trial, brought before the jury by one of the parties and in relation to the question under investigation. The jury surely were at liberty, in weighing the testimony, to take it into their consideration; and if they could legally do so, the court in charging them had a right to direct their attention to it. We do not consider a judge, under the act of 1794, in delivering his charge on the facts of a case, to be a mere machine to detail to the jury the evidence just as it occurred, and in the order it occurred; but it is his duty, when he does charge upon it, to collate it and bring it together in one view, on each side, with such remarks and illustrations as may properly direct their attention. Nor is it any error in a judge or any officiousness to bring to the notice of the jury principles of law or facts bearing upon the case which counsel may have omitted in argument. If important to the decision of the case, it is his duty to do so. What effect the fact would have (408) upon the mind of the jury in this case was for them to decide; per se it stood in direct connection with the question previously asked, and answered either way might have had an important bearing upon the decision. We see no error in the charge. S. v. Moses,
PER CURIAM. No error.
Cited: S. v. Caldwell,
