69 N.C. 159 | N.C. | 1873
"Equity will relieve by reforming an instrument which does not carry into effect the intention of the parties by reason of `fraud, accident or mistake.'" The application of this doctrine to our case was not drawn in question in the Court below, or on the argument and brief filed in this Court. So the only matter for our consideration is, has "fraud, accident or mistake" been proved according to law?
We see no error in the ruling as to the questions of evidence. The fact that A assigns to B the note of C, who comes to make payment, and that the assignment is made for the accommodation of B, taken in connection with the fact that the note assigned was under seal, raises an inference that the note taken in substitution was, as a matter of course, to be also under seal; connect this with the fact that the substituted note is written "witness my hand and seal;" connect this with the fact that B, is the half brother of A, living in the same house on terms of the most intimate family relations and confidence. These facts and circumstances in our opinion furnish evidence fit to be considered by a jury.
The issue is in the disjunctive: "Did the parties to the *162 note intend the same to be an instrument under seal, or did the payee suppose the same to be under seal at the time of its delivery? But the jury find both of these facts in the affirmative, and thus make the issue in the conjunctive, to-wit: the parties intended that the note should be under seal, and the payee supposed it was under seal; the latter part of the proposition being a mere corollary of the first, for if the parties intended the note should be under seal, of course the payee had a right to suppose that such was the fact, as the maker was relied on to do the writing, and its not being so must be ascribed either to fraud, accident or mistake. So the case is brought within the operation of the principle announced above.
There is no error.
PER CURIAM. Judgment affirmed.
