Collins v. Vandiford

• Decision Date: 31 October 1928
• Docket Number: (No. 171.)
• Citation: 145 S.E. 235
• Parties: COLLINS. v. VANDIFORD.
• Court: North Carolina Supreme Court

145 S.E. 235

(196 N.C. 237)

COLLINS.

v.VANDIFORD.

(No. 171.)

Supreme Court of North Carolina.

Oct. 31, 1928.

Appeal from Superior Court, Craven County; Harris, Judge.

Action by A. J. Collins against W. M. Vandiford. Judgment for defendant, and plaintiff appeals. No error.

The issue submitted to the jury, and their answer thereto, was as follows:

"In what amount, if any, is the defendant indebted to the plaintiff? Answer: Nothing."

McKinnon Carmichael, of Newbern, for appellant.

D. L. Ward, of Newbern, for appellee.

CLARKSON, J. This is a civil action to recover $100 alleged to be due on a note (conditional sale agreement) made by defendant to plaintiff on purchase of a Ford truck. Defendant denied liability and alleged:

"That after the said conditional sale agreement and buyer's statement had been executed and delivered to the plaintiff, the purchase price of $350 was wrongfully, falsely and fraudulently changed and altered to $450, with intent to defraud the defendant to the amount of $100 in excess of the purchase price which he agreed to pay."

After stating the contentions clearly and fairly, the court below charged the jury as follows:

"There is one issue for you to pass upon, gentlemen, in determining this case: 'In what amount, if any, is the defendant indebted to the plaintiff?' That is, in what amount, if any, is W. M. Vandiford indebted to the plaintiff, A. J. Collins, Vandiford being the defendant, and Collins the plaintiff. Now the burden of that issue, gentlemen, is on the plaintiff, Mr. Collins, and he is indebted either $100.00 and interest or nothing. * * * Now, as to this paper being changed, the allegation of the defendant that the figures were changed in this paper after he signed it, the Court charges you that before you can find that these figures were changed that you must be satisfied from evidence which is clear, strong and convincing. The rule is that a written paper stands for itself, and before you can find that any part of that paper has been forged, altered, or added to, that whoever says that must show you from the evidence that it is clear, strong and convincing that that has been done, and unless he has shown you it would be your duty to find that the paper was not changed. Now, gentlemen, the Court charges you, if you find from the evidence which is clear, strong and convincing to you that this paper was changed from $350 to $450, it would be your duty to answer this issue 'No.' But the Court further charges you, if you find that this paper was not changed, and the defendant having admitted the execution, it would be your duty to answer the issue $100.00."

The plaintiff complains that the charge was contrary to law; that when the plaintiff proved the execution of the note the burden of showing payment was on the defendant. This is ordinarily so. Guano Co. v. Marks, 135 N. C. 59, 47 S. E. 127; Swan v. Carawan, 168 N. C. 472, 84 S. E. 699; Raleigh Banking & Trust Co. v. Clark, 172 N. C. 268, 90 S. E. 200.

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