A. B. Hunter & Co. v. Sherron

• Decision Date: 16 October 1918
• Docket Number: 255.
• Citation: 97 S.E. 5,176 N.C. 226
• Parties: A. B. HUNTER & CO. v. SHERRON.
• Court: North Carolina Supreme Court

97 S.E. 5

176 N.C. 226

A. B. HUNTER & CO. v. SHERRON.

No. 255.

Supreme Court of North Carolina

October 16, 1918

Appeal from Superior Court, Wake County; Stacy, Judge.

Action by A. B. Hunter & Co. against J. L. Sherron. Judgment for defendant, and plaintiffs appeal. No error.

It is within the discretion of the trial judge to allow a witness previously examined to be recalled.

A. J Fletcher, of Fuquay Springs, and R. N. Simms, of Raleigh, for appellants.

Robert W. Winston, of Raleigh, for appellee.

CLARK C.J.

To the issue, "Was the note sued upon in this action procured by fraud on the part of the plaintiffs, as alleged in the answer?" the jury responded, "Yes." The plaintiffs excepted because, after the defendant had testified, he was allowed to go on the stand again the next day and offer testimony which the plaintiffs claim was contradictory. The permission for the witness to be recalled was in the discretion of the court, and not reviewable.

The plaintiffs rest their appeal almost entirely upon the refusal to charge, as requested:

"That even if the jury should find as a fact that the plaintiffs misrepresented to the defendant the legal effect of signing the note, this would not defeat the plaintiffs' right to recovery, since the plaintiffs' statement was a mere matter of opinion, and could not be a false representation."

In the notes to Wollam v. Hearn, 2 White & Tudor Ldg. Cas. pt 1, p. 988, it is said:

"Whatever doubt may exist in other cases, it is clear that one who induces the execution of an instrument by a false or mistaken statement of its legal effect or operation should not be allowed to take advantage of an error which he has contributed to produce." Champlin v. Laytin, 18 Wend. (N. Y.) 407, 31 Am. Dec. 382.

This is an action upon a note for the balance alleged to be due upon the purchase money of fertilizers, and the allegation in the answer is that one of the plaintiffs, A. B. Hunter, approached the defendant to induce him to buy said fertilizers, and after the defendant had agreed with Hunter for the purchase of fertilizers for himself--

"the said Hunter wrongfully, and with the intent to cheat and defraud, falsely and fraudulently pretended and represented to this defendant that, if he would agree to have his fertilizers shipped in the car with the fertilizers of the defendant J. S. Brinkley, it would save his making two shipments and be more convenient to plaintiffs, and it would save his preparing two notes, and this defendant was requested to sign a note for his part of the fertilizers, together with defendant Brinkley, under the belief, fraudulently and falsely induced by the said A. B. Hunter, that the purpose and effect of this defendant's executing a note together with said Brinkley would have the same legal effect; and this defendant, relying explicitly upon said Hunter's representations, which were falsely and fraudulently made, and believing that he would only be liable for and called upon to pay that part of the said note which was represented by the fertilizers bought by him as aforesaid, consented to sign a note; that as this defendant is informed and believes the representations made to him and his codefendant were falsely and fraudulently made, and with the purpose and intent to cheat and defraud this defendant out of his property, and to make him become and be liable for the other debt of the said Brinkley, all of which was without the defendant's knowledge or consent."

On an allegation that a contract is obtained by fraud, parol evidence is always admissible. Bigelow on Fraud, p. 174, § 8. It is competent to show by parol testimony that one who has become joint obligor is...