Barefoot v. Lee

• Decision Date: 28 October 1914
• Docket Number: (No. 276.)
• Citation: Barefoot v. Lee, 168 N.C. 89, 83 S.E. 247 (N.C. 1914)
• Parties: BAREFOOT et al. v. LEE.
• Court: North Carolina Supreme Court

83 S.E. 247

168 N. C. 89

BAREFOOT et al.

v.LEE.

(No. 276.)

Supreme Court of North Carolina.

Oct. 28, 1914.

1. Appeal and Errob (§ 662*) — Recobd — Controlling Effect of Statement.

The statement of the trial judge in the record that plaintiffs admitted a certain fact, nothing else appearing, must be accepted as against plaintiffs' mere denial in argument on appeal.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 2850-2852; Dec. Dig. § 662.^*]

2. Usury (§ 18*) — Payment of Loan to

Agent.

The question of usury in the loan by defendant to plaintiffs depends on the amount he loaned them, the amount he paid to W., their agent, for them, regardless of the amount they received from W., or the amount of their debt to L., the payment of which was the occasion of their borrowing from defendant.

[Ed. Note.—For other cases, see Usury, Cent. Dig. §§ 31-34, 36-38, 40; Dec. Dig. § 18.^*]

3. Appeal and Errob (§ 273*)—Exceptions-Scope.

An exception directed against three distinct instructions, separately numbered, one of which is correct, is not specific enough to avail on appeal.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 1590, 1606, 1620-1623, 1625-1630, 1764; Dec. Dig. § 273.^*]

4. Tbial (§ 273*)—Instbuctions—Time.

For parties to avail themselves, as matter of right, of an incorrect statement in an instruction that they admit a certain fact, they must call the judge's attention thereto before verdict.

[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 680-682; Dec. Dig. § 273.^*]

5. New Trial (§ 39*)—Discretion—Misbep-eesentation in instbuction..

Setting aside the verdict for an inadvertent misstatement of fact in an instruction, not called to the court's attention at the trial, is a matter of discretion for the trial judge.

[Ed. Note.—For other cases, see New Trial, Cent. Dig. §§ 57-61; Dec. Dig. § 39.^*]

6. Tbial (J 253*) — Instbuctions — Submission of Issues.

The court need submit to the jury only enough issues to decide all the controverted questions and give each party fair and full opportunity to present his case in every aspect.

[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. § 253.*]

7. Witnesses (§ 311*)—Cbedibility— Sex.

As charged, the fact that a witness is a woman entitles her to no more credit than a man.

[Ed. Note.—For other cases, see Witnesses, Cent. Dig. § 738; Dec. Dig. § 311.*]

Appeal from Superior Court, Cumberland County; Lyon, Judge.

Action by James Barefoot and others against J. B. Lee. Judgment for defendant, and plaintiffs appeal. Affirmed.

E. G. Davis, of Fayetteville, and R. L Godwin, of Dunn, for appellants.

Clifford & Townsend, of Dunn, for appellee.

PER CURIAM. [1-3] This action' was brought to recover $772.54, double the amount of excessive and unlawful interest alleged to have been paid to defendant, as usury, upon an indebtedness of the former to the latter, evidenced by a note and mortgage to secure the same. The note was given for $1,528.25, whereas plaintiffs allege that they received on the loan only $1,223.48. The transaction was conducted through W. A. Stewart as attorney for the plaintiffs. He received the $1,-528.25 from defendant, paid off a debt due by plaintiffs to J. G. Layton amounting to $1,-223.48, and it does not appear what disposition was made of the balance. The case substantially turned upon the authority of W. A. Stewart to represent the plaintiffs and bind them by his acts. It is stated in the record that plaintiffs admitted that Mr. Stewart was their attorney. Plaintiffs denied on the argument before us that this was true, but we must accept the statement of the judge on this point, nothing else appearing. We cannot settle this controversy upon their bare denial. Upon the admission, the charge of the court was clearly right that defendant's liability or plaintiffs' right to recover depended not upon the amount due to Layton, but upon that received by W. A. Stewart from defendant for and in behalf of the plaintiffs. It was the actual amount loaned, regardless of the amount received by them. They must settle the difference with their attorney, who it seems had a claim against them for professional services rendered in this and perhaps other transactions. Besides, the exceptions of plaintiffs to the charge of the court were not specific enough. It was directed against three distinct instructions, separately numbered, one of which, at least was correct in law. It must therefore fail. Lumber Co. v. Moffitt, 157 N. C. 56S, 73 S. E. 212; Gwaltney v. Insurance Co., 132 N. C. 929, 44 S. E. 659.

If the plaintiffs wished to challenge the correctness of the statement that they had made the admission as to Mr. Stewart's attorneyship, they should have called it to the attention of the court at the proper time. It is too late after verdict to avail themselves of its incorrectness, as a...