Willey v. Gatling, 70 N.C. 410

Willey v. Gatling

70 N.C. 410 | N.C. | 1874

Beads, J.

Among other defences set up in the answer are the following:

1. The plaintiff has no such interest in the note as entitled him to sue.

2. The note had been paid.

At Spring Term, 1873, of the Court below, the case was tried, and two issues were submitted to the jury;

1. ITas the plaintiff such an interest in the note as entitles him to sue ?

2. Has the note been paid ?

The j ury found both issues for the plaintiff; that he had such interest as entitles him to sue, and that the note had not been paid.

The first issue was not put to the jury in the best form; because it involves a question of law which was not for them, but for the Court.

What interest the plaintiff had in the note, was a question of fact for the jury; whether such interest entitled Mm to sue, was a question of law for the Court. It turns out, however, *421that no injury resulted from it; because the facts were stated by the plaintiff and not denied by the defendant; and his Honor charged the jury, that if they believed the facts as stated by the plaintiff, then he was entitled to sue. The facts as stated were that the note had been handed over to plaintiff without endorsement, by the payee, to collect, and out of the money when collected, to pay himself a debt which the payee owed him ($800) and the balance pay over to the payee.

We are of the opinion that his Honor was right in that charge.

Upon the second issue his Honor charged the jury that if they believed the evidence of the defendant Worrell, they should find the note paid; but if they believed the evidence offered by the plaintiff", they should find that it had not been paid.

We have frequently said that this is a very unsatisfactory way of putting a ease to the jury; and that there are very few cases where it can be allowed, and none in which it can be necessary. In this case the jury might have believed every word of Worrell’s testimony and yet not find the note paid; for he said only, that, “ according to his recollection, he had paid it.” And on the other hand they might have believed every word of the testimony offered by the plaintiff, and yet have believed that the note had been paid to the original payee, before the plaintiff got it. The proper charge would have been, that they should consider all the evidence offered on both sides, and find the fact according to their convictions.

For this .error there must be a new trial.

The foregoing are all of the exceptions to the Judge’s charge. And upon these exceptions alone, the case is now before us. It seems, however, that the case had been tried before at -Term, 1871 ; and an appeal had been taken from that trial to this Court. And at June Term, 1871, the case was remanded. And upon amended pleadings, there was a second trial in the Court below, and from that trial an appeal was taken; and that is the trial which w.e are now reviewing. *422And. it is clear that we are confined to a review of the last trial; yet the case shows that after the verdict was rendered,, and the appeal tafeen in the last trial, his Honor proceeded to find all the facts in the case (other than those involved in the issues submitted to the jury) which had not been found by a jury, and which had not been submitted to him in place of the jury, and proceeded to declare his opinion upon this assumed state of facts, and sends up the same to be reviewed by us. We know no warrant for this;, and we mention it for the purpose of aiding the next trial. In looking into' the pleadings' and the evidence, we see that the ease is exceedingly complicated. And the issues which were submitted to and found by the jury, do not cover the case, and will not enable the Court to decide it. Probably the parties will find their interest in agreeing to a reference under the code, or ia waiving a jury, and allowing the Judge to find the facts.

But, all that we can say is, that there is error, and that there: must be a venire de novo.

Pee. OuRiAM. Venire de novo.