46 S.E. 740 | N.C. | 1904
This is an action to ascertain the balance due upon a mortgage executed by the plaintiff to the defendant to secure the balance of the purchase money upon the land which had been conveyed to the plaintiff by the defendant, and an injunction pending the action. The complaint alleged that the purchase price was $8 per acre; that the deed recites a consideration of $1, but that the mortgage notes were written upon the basis of $10 per acre, allowing credit for amounts paid before the execution of the mortgage; that the plaintiff is an ignorant man, unable to read or write, and that the defendant wrote all the papers. The jury found that the plaintiff was entitled to the credits claimed, and that the agreed price was $8 per acre, and there was judgment in favor of the defendant for the balance due upon such findings and a decree of foreclosure if such balance was not paid by a day named. The defendant appealed.
The plaintiff was allowed to state that after he had contracted with the defendant and before the papers were drawn up he (the plaintiff) stated to one Byrum that the agreement to buy was for the price of $8 per acre; and further, Byrum testified that the plaintiff did make such statement to him at that time. The first and second exceptions were to the above evidence, but it was competent to corroborate the plaintiff, who had testified that $8 per acre was the agreed price. Burnett v. R. R.,
The third exception, for refusing to nonsuit the plaintiff at the close of his evidence, was waived by the defendant introducing evidence. Ratliffv. Ratliff,
The fifth exception is that the court refused to tell the jury that the evidence was not strong, clear and convincing. In Cobb v. Edwards, 117 N.C. at p. 253, the Court said: "The judge has no more right when the testimony, if believed, is sufficient to be submitted to the jury, to determine in the trial of civil actions what is strong, clear and convincing, than he has in the trial of a criminal action to express an opinion as to whether guilt has been shown beyond a reasonable doubt." This has been cited and approved, Lehew v. Hewitt,
The fourth exception, for refusal to nonsuit the plaintiff at the close of the evidence, and the fifth and sixth exceptions, for *286
refusal to charge that there was not sufficient evidence, and that upon all the evidence the jury should answer the first issue "No," present substantially the same question, and should be considered together. Fraud is not charged, and the case in its general features resembles Day v. Day,
If this evidence might tend to sustain a charge of fraud the defendant certainly cannot complain that such charge is not made, and that the action is restricted by the complaint and issue (submitted without objection) to an inquiry whether there was a mutual mistake in drawing up the notes. It is not prejudice to the defendant, the draftsman, that his error in drawing up the notes is claimed to be due to mistake and not to fraud on his part.Moffitt v. Maness,
A mistake of one party will not entitle him to correction (394) of a written instrument, but when there is mutual mistake or mistake on one side, and either fraud, surprise, undue influence, misapprehension, imposition or like cause on the other, giving rise to the plaintiff's mistake, the Court will give relief. White v. R. R., 110 N.C. at p. 460; Day v. Day, supra; 20 Am. and Eng. Ency. (2 Ed.), 823.
No error.
Cited: Earnhardt v. Clement,