91 S.E. 948 | N.C. | 1917
The action was brought to recover the amount of a promissory note made by the defendant to the plaintiffs 25 March, 1915, for $2,100, due sixty days after date. Plaintiff introduced the note in evidence and then rested. Defendant alleged that the note was given for margins upon what is known as "futures" or contracts in the form of sale of cotton to be delivered in the future, when there was no real intention to deliver the cotton, but merely to settle them by paying the differences in prices according to the rise or fall in the market. There was evidence tending to show that the original note was given for such margins and renewed from time to time. The jury returned the following verdict:
1. At the time of the alleged indebtedness to Orvis Bros. Co. by the defendant, and at the time of the execution of the note sued on, was the defendant Holt-Morgan Mills engaged in the ordinary course of its business in the manufacture of cotton? Answer: "Yes."
2. Is the defendant indebted to the plaintiff; and, if so, in what sum? Answer: "$2,100 and interest from 25 March, 1915."
3. Was the note in question based on a contract for cotton on margins and without any intention of the contracting parties to deliver or receive the actual cotton? Answer: "No." *282
Judgment for the plaintiff, and appeal by defendant. after stating the case: The charge of the judge was very meager. He simply instructed the jury that the burden was upon the defendant, and if it had shown that the contract was illegal, they should answer the third issue "Yes," but if it had failed in this respect they should answer it "No." We do not think this was an adequate (233) charge or a compliance with the statute. All the evidence tended to show that the contracts for the pretended sales of cotton were condemned by our statute. Revisal, secs. 1689, 3823, 3824. There was no instruction or intimation to the jury as to what would be an illegal contract and in this respect the jury were left, without any aid from the court, to pass upon the validity of the note according to their own notion of the law. The statute requires that "The judge shall state in a plain and correct manner the evidence given in the case and declare, and explain, the law arising thereon." This was not done. The jury were not told what would constitute an "illegal consideration" or a "gambling contract" under the statute in cases of this kind. Nor was anything of the kind said to them which was calculated to enlighten their minds upon this vital question in the case. The judge must instruct the jury as to the law of the case in some way, even if it be a general statement of the same. In the latter event, if either party would have more special instructions given, he must ask for them.
We said in Simmons v. Davenport,
We said in Edgerton v. Edgerton,
In this case, was it the intention of both parties that the cotton should not be delivered, or was it their purpose to conceal, in the deceptive terms of a fair and lawful contract of sale, a gambling deal, or transaction, by which they contemplated no real bargain as to the article agreed to be delivered? If so, the contract is void. Holt v. Wellons,
Another question is, can plaintiff recover upon the note if it was given in payment of margins due on contracts ostensibly for the sale of cotton, but really with no intention of a delivery?
It is said in Embrey v. Jamison,
If the jury believed the evidence as it now is, and found the facts to be in accordance with it, defendant was entitled to their verdict (235) (Holt v. Wellons, 163 N.C. at p. 130), and failed to receive it, perhaps, because the jury were not informed as to the law. Errors in rulings upon the admission and exclusion of testimony were alleged, but they need not be noticed.
Repetitions of the promise to pay it did not impart any validity to the note. It was just as void as before, if the consideration was margins due on "futures," or gambling contracts, plaintiff being a party to the original transaction and note and continuing as such. Cobb v. Guthrie,
There was material error in the charge.
New trial.
Cited: Power Co. v. Power Co.,