1 S.E. 852 | N.C. | 1887
(Price v. Eccles,
No other payments have been made, and the two first bonds having matured, the present action was instituted to recover judgment on them, and to procure a foreclosure and sale of the mortgaged lot upon (320) which the structure for the mills and machinery had been erected, under a provision in the deed authorizing a sale upon a default in respect to any of the bonds therein secured.
The defendants answer and as a defense allege false and fraudulent representations of the capacity of the mills for doing work, and in other material particulars entering into the value of the property under which they were induced to enter into the contract of purchase, and have been deceived and wronged, and they demand a rescission of the contract, or a recoupment upon the agreed price, or damages compensatory for the deceit and fraud practiced in the sale, to be deducted from the plaintiff's demand. *255
Three issues were passed on by the jury, which with their responses to each are as follows:
1. Did the plaintiff make any false and fraudulent representations as set out in the answer, to induce the purchase of the mill and the execution of the notes secured by the mortgage? Answer: Yes.
2. Did defendant buy and give his notes and secure the same by reason of the false and fraudulent representations made by plaintiff? Answer: Yes.
3. What damages hath the defendant sustained, if any, by reason of the fraud and deceit practiced upon him by the plaintiff? Answer: None.
On the rendition of the verdict of the jury as above, the plaintiff moved for a new trial upon the judge's minutes, and to set aside the verdict as being against the weight of evidence. The defendants opposed plaintiff's motion, and on their own behalf made counter-motion for decree of rescission and restoration to their former position. On consideration, his Honor granted the plaintiff's motion and overruled that of the defendants.
The defendants thereupon prayed an appeal in open court, and had the same entered of record.
When the trial was entered upon, the defendants moved for judgment rescinding the contract of sale, for that their answer demanding this was a counterclaim, the facts alleged in which not being controverted, were to be taken as true. The court, not acceding to this view, denied the motion, and directed the trial to proceed, with the result shown in the verdict, the jury finding the false and fraudulent representations set out in the answer to have been made, and that by reason thereof the defendants were induced to make the purchase, but that no damages had accrued thereby to them. The answer, it will be observed, while averring the facts upon which their defense rests, commingles such as go in avoidance and also constitute a counterclaim. The primary and preferred relief, the annulling of the entire contract, is matter in avoidance, and is deemed to be controverted without a replication; The Code, sec. 268; Price v. Eccles,
The right to recover remuneration in an action for deceit in the sale of land or fishing grounds, effected by fraudulent devices and representations, is settled by the case between the same parties, reported in 1 Jones, 145; and again in 2 Jones, 33.
(322) The defendants, however, demanded a judgment of rescission, and in this were properly overruled. They did not demand an interlocutory judgment and an inquiry of damages by the jury, and hence their right to this was not passed on by the court. The defendants certainly were not entitled to final judgment in either form. There being no error in this ruling, there could be no appeal from a judgment setting aside the verdict as having been rendered against the weight of the evidence, and especially with such repugnant findings.
The judgment must be affirmed. Let this be certified.
No error. Affirmed.
Cited: Buffkins v. Eason,