34 N.C. 293 | N.C. | 1851
The only difficulty we have is to put a construction upon the charge. If his Honor meant there was no evidence of a ratification of a sale, clearly there is error, for the testimony of Ray and Metcalf, and the fact that the wife took the cattle home and the husband kept them in his possession for four or five years, was the strongest kind of evidence. The structure of the sentence favors this construction — "the plaintiff acquired no title unless the husband had authorized his wife to sell at or before the sale or had subsequently assented to it; there is no evidence that he authorized the sale, nor is there any evidence that he subsequentlyassented to it." This is what the order of the sentence called for, and we are at a loss to conceive why he used the words "that he had said anything on the subject after the sale," except on the supposition that he considered them as meaning the same thing. *204 This must be so unless he meant to drop "a part of the idea" and depart from the order of the sentence.
If the meaning is, that to constitute a subsequent assent, it was necessary he should have said something on the subject after the sale, there is error, because an assent can be implied from acts as well aswords. But taking the words literally, there is error, for there was evidence that he had said something on the subject after the sale. The defendant's own witnesses prove that the plaintiff and Landers had been talking on the subject.
It is suggested that in the latter part of the charge a ratification is assumed, and thus all objection to the former part is removed. It is true, the jury are told if they believe there was a subsequent agreement, that Landers should repay the price in work, and he did so, then the plaintiff is not entitled to recover. But here the charge stops, (296) and in any point of view in which the case is presented the plaintiff is not entitled to recover. Usually when the jury are charged that if a certain fact is established, the plaintiff is not entitled to recover, it is implied that otherwise he is entitled to recover; but when this alternative branch of the proposition is required to remove a ground of objection to a preceding part of the charge, it is necessary that it should be expressed and not be left to implication. In this case, if his Honor had gone on to say, "but unless the defendant has satisfied the jury that Landers did in fact repay the plaintiff by work, then he is entitled to recover," the objection might have been removed. As it is, we think the plaintiff has good cause to complain of the manner in which the case was put to the jury.
If a judge omits to charge upon a point presented by the evidence, it is no error unless he is requested to give the charge. But if he makes a charge against law it is error unless it be upon a mere abstract proposition and it is apparent upon the whole case that it could not have misled the jury.
PER CURIAM. Venire de novo.
Cited: S. v. Cardwell,
(297)