113 S.E. 602 | N.C. | 1922
Civil action, to set aside a deed for fifty acres of land, made by plaintiff to defendant in November, 1918, on allegations with evidence tending to show that defendant procured the execution of the deed under a promise to render needed personal services to plaintiff, who was an old and enfeebled man, the defendant having the fraudulent intent and purpose at the time not to perform the services after the deed was executed, and which defendant had thereafter failed and refused to perform.
There was denial of any such consideration for the deed on the part of defendant, with allegations to the effect that the deed was executed for the consideration of $200 due defendant for services already performed at the time of the execution of the deed, defendant offering evidence tending to support the averments of the answer. On issues submitted, the jury rendered the following verdict:
"1. Did the defendant procure the deed in controversy by the false and fraudulent representation that he would render to the plaintiff the services alleged in the complaint? Answer: `Yes.'
"2. Did the defendant fraudulently fail and refuse to render said services to the plaintiff? Answer: `Yes.'"
Judgment on verdict for plaintiff, and defendant excepted and appealed.
There was ample evidence to support the verdict, the cause was submitted to the jury under a correct and adequate charge, and we find no valid reason for disturbing the results of the trial. It is established by the great weight of authority, and is held for law in this jurisdiction, that where one under the guise of a purchase acquires the goods or property of another under a promise to pay or perform, and has at the time a settled purpose to do neither, such transaction will be regarded as a fraudulent one on the part of the pretended purchaser, and same may be set aside at the instance of the vendor. In Benjamin on Sales (7 ed.), at p. 470, the American Annotator states the position as follows: "Another well established species of fraud by a vendee is purchasing with a positive intention not to pay for the goods. If such intention were known to the vendor he certainly would not sell. Its suppression, therefore, is a legal fraud," citing, among many other authorities, Des Farges v. Pugh,
It is urged for error chiefly that the charge of his Honor on the question of fraud was not sufficiently full and explicit to meet the requirements of the statute as to instructions of a trial judge. C. S., 564. It may be that his Honor did not refer to all the terms appearing in the general definition of fraud given in some of the cases on the subject, and at times required, as in suits to recover damages for fraud and deceit, but his Honor did better in giving to the jury the law of fraud as applied to the facts of this record, which he did in accord with the principles heretofore stated, and in terms sufficiently full and clear to enable the parties to present, and the jury to intelligently consider, every phase of the evidence pertinent to the issues. "He shall state in a plain and correct manner the evidence given in the case, and declare and explain the law arising thereon" is the language of the statute on the subject. And the charge of his Honor is in full compliance with the statutory provision.
For the same reason, the exceptions noted for failure to give the special instructions requested by defendant must be overruled. *117
To the extent that they are correct, or pertinent, the positions were all covered by the general charge, and in such case a refusal will not be held for reversible error. Sternburg v. Crohon,
There is no reversible error presented in the record, and the judgment for plaintiff on the verdict will be affirmed.
No error.