72 S.E. 309 | N.C. | 1911
Plaintiff sued, claiming to be indorsee for value and holder in due course of a negotiable note for $500, given by defendants to McLaughlin Bros., in part obligation for purchase price of a stallion. The deposition of plaintiff was introduced, containing full and direct statement that plaintiff bought the note for full value and same was duly indorsed to him by the payees before maturity and without notice of any fraud or other infirmity affecting its validity. The indorsement was denied in the pleadings, and there were also allegations on the part of defendants to the effect that there was a breach of warranty on the part of McLaughlin Bros. in the sale, and further that the sale was procured by false and fraudulent representations on the part of the said vendors, to defendant's damage. The jury having been impaneled and evidence offered, at the close of the testimony the court intimated that he would charge the jury that if they found the facts to be as testified in the *185 deposition, the plaintiff could recover, to which defendants then and there excepted. Counsel for defendant then stated to the court, "that they took the position that there was sufficient evidence to be found in the testimony to go to the jury on the question as to whether the jury believed the evidence of the plaintiff in the action. The court stated he would not allow a verdict to stand in favor of the defendants," this statement being made in the hearing of the jury, and defendants excepted.
There was verdict for plaintiff for full amount of the note and interest; judgment according to verdict, and defendant excepted and appealed, alleging errors. (230)
After stating the case: Our statute on negotiable instruments, as applied and construed in several recent decisions of the Court, is to the effect that in order to establish the position of holder in due course, when required to shut off counterclaims and defenses otherwise available, it must be shown that the instrument is complete and regular on its face and that title thereto was acquired in good faith and for value before maturity and without knowledge or notice of fraud or other impeaching circumstance, and, except in case of instruments payable to bearer, when the indorsement is denied, the same must be proved. Myers v. Petty,
In the present case there was allegation, with evidence on the part of defendant, tending to show that there was a breach of warranty, in the sale, on the part of these vendors.
On a perusal of the entire testimony, we think there was evidence tending to show fraud and deceit on their part, inducing the sale and causing damage, under the principles stated in Myers v. Petty, supra;Whitehurst v. Ins. Co.,
Under the conditions stated, therefore, with the controlling issue to be determined, and involving the credibility of plaintiff's testimony, tending to establish it, his Honor had no right to say in the hearing of the jury, "that he would not allow a verdict to stand in favor of defendants." The Court has been always swift to enforce obedience to our law which forbids a presiding judge to express an opinion on the disputed facts of a trial, and under numerous decisions construing the statute, we must hold this remark of his Honor, in the presence of the jury and before verdict, to be reversible error. S. v. R. R.,
New trial.
Cited: S. v. Cook,
