124 S.E. 855 | N.C. | 1924
The issues submitted to the jury and their answers thereto are as follows:
"1. Was the execution of the two notes referred to in the pleadings procured by false and fraudulent representations as alleged in the answer of defendant? Answer: Yes.
"2. If so, did the plaintiff acquire said notes in due course for value, and before maturity, without actual notice of said false and fraudulent representations? Answer: Yes.
"3. At the time of execution of said notes did the salesman of the Cumberland Railway and Power Company deliver to the defendant a contract in accordance with section 6367 of Consolidated Statutes? Answer: No.
"4. If not, did the plaintiff have notice of said fact? Answer: No.
"5. In what amount, if any, is defendant indebted to the plaintiff on account of said notes? Answer: $1,000 with interest."
Upon the conclusion of the evidence the court below instructed the jury that if they believed the evidence and found the facts to be as testified to by the witnesses, they would answer the first issue, "Yes," the second issue, "Yes," the third issue, "No," the fourth issue, "No," and the fifth issue, "$1,000 with interest."
To the instructions of the court below, with reference to the second and fifth issues, the defendant excepted and assigned error. We think there was error. From the record there was evidence to be submitted to the jury that the notes sued on were procured by false and fraudulent representations of the agent or salesman of the Cumberland Railway and Power Company. The learned judge who tried the case so thought. If there was evidence, it is well settled in this State that "upon proof of fraud or illegality being offered, burden is shifted to holder, and he must show that he received the instrument bona fide and for value." Bank v. Sherron,
This matter is so well stated in Moon v. Simpson,
It was said in Sterling Mills v. Milling Co.,
The "Blue-Sky Law" defense we have considered in Planters Bank and TrustCo. v. Felton, post, 384.
It is of interest to note in the record the testimony of one of the witnesses for defendant, on cross-examination: "I have been a farmer and merchant in Franklin County, accustomed to notes and papers; did business with banks and stores. Have been a director in one bank since its organization. I knew what a note was, and have learned a lot about notes since. I did not think I was going to get something for nothing. It was pictured to us to be pretty, and that man had the gift of gab, and a lot of times a man can overpower you. If the Christian religion had five or six men like that going around preaching the gospel they could soon Christianize the whole world."
"Now the serpent was more subtle than any beast of the field." Genesis, ch. 3, part verse 1.
For reasons given there must be a
New trial. *377