85 S.E. 146 | N.C. | 1915
1. The first assignment of error is not sustained by the record. (51) His Honor did not charge the jury that there was no evidence of confidential relationship existing between the parties. He did, however, say: "Ordinarily, gentlemen, where this confidential relationship exists as to a transaction passing between the parties, the presumption is that it is fraudulent; but the court instructs you, gentlemen, that there is no evidence of this confidential relation existing between the plaintiff and the defendant that would create a presumption in the case at all," and counsel for the plaintiff admits that, upon the evidence introduced upon the trial, this was a correct statement of the law.
2. We find no error in that part of the charge to the jury embraced in the second assignment of error. His Honor stated clearly the respective contentions of the plaintiff and the defendant, and it appears that the fact in dispute was whether the defendant made a representation as to the net profits of the business or as to the gross profits, the plaintiff contending that she was induced to enter into the contract by reason of the statement by the defendant that the net profit of the business per month was $300, and the defendant contending that his statement was that the gross profit was $300 per month.
This being true, his Honor could not do otherwise than charge the jury that if the representation made was as contended for by the defendant they should answer the issue "No," and this is the effect of the part of the charge excepted to.
His Honor charged the jury, in reference to the contention of the plaintiff, that "The false representation relied upon in this case is that the defendant represented to the plaintiff that this livery business he then and there proposed to sell to plaintiff was paying to him at the time of the sale, and had been prior to that time, the sum of $250 or $300 profit. That is the false representation which is relied upon by this plaintiff — that the defendant made that representation to her. The burden is on the plaintiff to show that he did"; and with reference to the contention of the defendant, that "The defendant contends, gentlemen, that you ought to answer the first issue `No.' He contends, in the first place, that he made no false representation; he did not tell her — told her nothing from which she could infer he was making a profit of $200 or over; but he testified what he told her was that the *92 income from the business, the gross income, was $300, and he says that is true, and he had been having an income of $300 and that he had been having that on an average for the last two years prior to that time. So he contends, in the first place, that it wasn't any false representation made by him. That he stated the truth, the facts as they were, and that the plaintiff misconstrued what he said, thinking that he meant that the profits were as she contends, when he was saying that it was the gross income."
(52) No exception was taken to this part of the charge, and the case was tried upon the theory that this correctly presented the position of the plaintiff and the defendant.
The question discussed upon the oral argument, as to the correctness of the statement that "there is no evidence that his gross income was not as stated by him," is not embraced in the assignments of error, nor is it referred to in the brief of the appellant.
The charge of his Honor impresses us as being more favorable to the plaintiff than she was entitled to, because upon a careful reading of her evidence it does not appear that she testified that the defendant made any representation as to the profit which the defendant had made or was making out of the business, except she did say, after the statement by the defendant that the business would pay for itself in six months, she asked if she could also have a living out of it, and the defendant replied that it was doing as well as that.
She does not say in her testimony that the defendant stated that he had made and was making $300 per month, and the only representation she says the defendant made was that the business would pay for itself in six months, which is not the representation alleged in the complaint.
It is not necessary to consider the correctness of that part of the charge referred to in the third assignment of error, as the plaintiff cannot in any event have rescission of the contract as long as the finding of the jury upon the first issue stands.
The other assignment of error is merely formal.
No error.
