Brown v. Vestal

• Decision Date: 02 November 1949
• Docket Number: 382
• Citation: 55 S.E.2d 797,231 N.C. 56
• Parties: BROWN v. VESTAL et ux.
• Court: North Carolina Supreme Court

55 S.E.2d 797

231 N.C. 56

BROWN v. VESTAL et ux.

No. 382

Supreme Court of North Carolina

November 2, 1949

The male defendant purchased a parcel of land in Asheboro, N. C., for the sum of $60,000. Plaintiff alleges and offered evidence tending to show, that prior to the purchase he and defendant agreed that they would purchase the tract jointly, that Vestal would proceed with the negotiations with the owner, acquire the premises, and take title thereto in his name for the use and benefit of himself and plaintiff.

Defendants admit that Vestal agreed to purchase the premises, retain therefrom a lot 300 by 300 for his own use, and 'let the plaintiff in on the balance. ' They allege, however, that the seller's price was so high they abandoned the agreement and then at a later date Vestal purchased for his own benefit. They offered evidence in support of this and other matters pleaded in defense.

There was a verdict for plaintiff. From judgment thereon the defendants appeal.

J A. Spence and Ferree & Gavin, Asheboro, for plaintiff appellee.

H M. Robins, Asheboro, for defendant appellants.

BARNHILL Justice.

The court in its charge instructed the jury in part as follows:

'Now Gentlemen of the Jury, counsel in this case for both the plaintiff and the defendant have argued to you at some length not only the evidence and facts, as was their duty so to do, but from various opinions of the Supreme Court touching the questions arising in the trial of this case. If those questions of law so argued by counsel are not inconsistent with what I have laid down as a rule of law, you should be guided by them, and if they are inconsistent, you are to disabuse your minds of them and follow the instructions laid down by the Court.'

This must be held for error.

Counsel have the right to argue 'the whole case as well of law as of fact. ' G.S. s 84-14; Howard v. Western Union Telegraph Co., 170 N.C. 495, 87 S.E. 313. Frequently it is necessary for them to do so in order to present, in an intelligent manner, the facts they contend the jury should find from the evidence offered. Sears, Roebuck & Co. v. Rouse Banking Co., 191 N.C. 500, 132 S.E. 468.

Even so, it is the duty of the court in its charge to explain and apply the law to the various aspects of the testimony and the jury, in arriving at a verdict, must follow the law as thus stated to them. State v. Friddle, 223 N.C. 258, 25 S.E.2d 751; Sears, Roebuck & Co. v. Rouse Banking Co., supra; Spencer v. Brown, 214 N.C. 114, 198 S.E. 630.

The court ought not to submit his charge to the jury for elimination of inconsistencies State v. Jackson, 228 N.C. 656, 46 S.E.2d 858. A fortiori, the jury should not be required to compare...