255 N.C. 167 | N.C. | 1961
The first assignment of error relates to the following exchange which occurred after the plaintiff and all the defendants had rested. The plaintiff requested permission to offer one John J. Burke as a rebuttal witness, which was permitted by the trial judge in his discretion. At the conclusion of testimony by Burke the following transpired:
“Mr. Fleming (in the presence of the jury): ‘Your Honor, we purpose to call Mr. Duckworth but his testimony would be largely cumulative.’ ”
“Mr. Randolph: ‘Object to that.’
“The Court: ‘Overruled— Exception.’
“Mr. Fleming: T was going to say your Honor has permitted us to have one witness, and since Mr. Randolph takes that attitude, whether your Honor would permit us also to have Mr. Duckworth testify, but*170 I would have to admit to your Honor that his testimony would be largely cumulative of what Mr. Burke has testified to.’
“The Court: 'The Court is of the opinion that it has been sufficiently gone into to repeat the testimony. Overruled. Exception.’ ”
The defendant Frank Roger Page contends that the statement “The court is of the opinion that it has been sufficiently gone into to repeat the testimony,” amounts to prejudicial error.
When considered in the light of the evidence produced at the trial of case on appeal we are of the opinion that there is error and that the defendants are entitled to a new trial.
The male defendant Page admitted the execution of the guaranty contract. His defense was confession and avoidance, and the burden was upon him to establish it. Jones v. Ins. Co., 254 N.C. 407, 119 S.E. 2d 215.
After defendant Page offered his evidence Crown would have the right to offer evidence to controvert the defendants’ claim that the guaranty had been terminated.
The evidence in the record shows that when the guaranty contract was executed, Frank Roger Page was a stockholder and officer in the defendant corporation, Page-Myers Oil Company. Invoices were regularly mailed to his address. Early in May 1958 a conference was held in Winston Salem with respect to the continued operation of the corporate defendant. There is evidence that a price war existed and that Page demanded relief. Present at this meeting were Mr. Duckworth, chief district officer of Crown, his assistant, Mr. Burke, and his principal salesman, Mr. Felton. In this connection defendant Page testified: “So it was agreed upon with Duckworth, Mr. Burke and Archie Fel-ton that, in order to maintain what we had already established in the territory, they would let Mr. Myers take full charge of it * * * Mr. Myers then bought- out my interest for that price and I was out of the distributing business with Crown and with Page-Myers Oil Company.”
There is evidence that following the conference defendant Page wrote a letter to Crown enclosing his check for $479.69 and containing the statement that he was “no longer responsible for any bills to Crown Central Petroleum Corporation.” The letter also contained directions to mail subsequent invoices to “Page-Myers Oil Company, Route #8, Lexington, North Carolina.” It is conceded by all parties that Crown got and cashed the check. It is likewise conceded that invoices were thereafter mailed as testified to by Mrs. Page.
To repel defendant Page’s assertion of cancellation of the guaranty contract the plaintiff Crown put the assistant district manager, Burke, on the witness stand. He testified that he had searched for the letter
Thereafter, counsel for the plaintiff, speaking with respect to what Duckworth, the district manager, would testify to, said: “I would have to admit to your Honor that his testimony would be largely cumulative to what Mr. Burke has testified to.”
What was it Burke had testified to? That he did not know why they had changed the address, or that he did not remember the details of the conference in Winston Salem in May to which defendant Page had testified, or that he could not find the letter?
Then followed the court’s statement: “The court is of the opinion that it has been sufficiently gone into to repeat the testimony.” Could not the jury in this situation have understood the judge to imply that Burke had made a thorough and careful search for the defendant Page’s letter and failing to find such letter, Page had simply not told the truth when he said he wrote and mailed the letter? Could not the jury have understood the court to mean that Page was not telling the truth when he testified that he had agreed with Duckworth to terminate his relationship with Crown at the Winston Salem conference?
Therefore, in the light of the foregoing evidence, we are constrained to hold that the trial court intimated an opinion as to the weight and sufficiency of the evidence in this case in contravention of G.S. 1-180.
Furthermore the portion of the court’s charge: “In other words his responsibility and as an owner of stock are totally disassociated conditions, and his guarantee was as much his liability whether he owned stock or whether he did not, so long as he did not comply with his obligation to the time of this letter. If he had done so, and you find from this evidence that in his letter referred to heretofore, they acted upon it, it would release him,” is vague and fails to declare and explain the law as required by G.S. 1-180. The court should have also told the jury that if the letter was written and mailed as testified to by Mrs. Page, there'is a prima facie presumption that it was received. Trust Co. v. Bank, 166 N.C. 112, 81 S.E. 1074; White v. Ins. Co., 226 N.C. 119, 36 S.E. 2d 923.
Furthermore, the court erred in charging that if Crown received and acted upon the letter it would release Page. The jury could have gotten the erroneous impression that “acting upon” the letter meant
For reasons stated the defendants are entitled to a new trial.
New trial.
