Hardy v. Mitchell

• Decision Date: 26 February 1913
• Citation: 77 S.E. 225,161 N.C. 351
• Parties: HARDY et al. v. MITCHELL.
• Court: North Carolina Supreme Court

77 S.E. 225

161 N.C. 351

HARDY et al.

v.MITCHELL.

Supreme Court of North Carolina.

Feb. 26, 1913.

1. Trial (§ 296^*) — Instructions — Error Cured by Giving Other Instructions.

Where, in an action on a note, the court instructed that the burden was on plaintiff to show that he had no knowledge of the infirmity in the note, and no notice of any defect in the title of the person negotiating it, it was not error, in charging who was a holder in due course, to fail to state that he must be a holder in good faith for value, without notice, at the time it was negotiated to him, of any infirmity in the instrument or defect in the title of the person negotiating it, as provided by the negotiable instruments statute (Revisal 1905, § 2201).

[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718; Dec. Dig. § 296.*]

2. Appeal and Error (§ 215*)—Presentation Below—Statement of Fact—Conclusion of Law.

An erroneous statement in an instruction that a certain fact is admitted will not be reviewed, when not called to the trial court's attention at the time; the rule being different from that in the case of an error in a conclusion of law embodied in the charge, in which case an exception to the error may be noted after the trial is over.

[Ed. Note.—For other cases, see Appeal and Error. Cent. Dig. §§ 1309-1314; Dec. Dig. S 215.*]

Appeal from Superior Court, Greene County; Justice, Judge.

Action by R. H. Hardy and another against N. C. Mitchell. From the judgment, defendant appeals. Affirmed.

For former opinion, see 156 N. C. 76, 72 S. E. 95.

These issues were submitted to the jury:

"First. Was the note given for a valuable consideration? Answer: No.

"Second. Was the note sued on procured by fraud, and under circumstances against public policy, as set out in the answer? Answer: Yes.

"Third. Was the note sued on indorsed to plaintiffs in due course and before maturity? Answer: Yes."

From the judgment rendered, the defendant appealed.

J. P. Frizzelle, of Snow Hill, G. V. Cowper, of Kingston, and L. R. Varser, of Lumberton, for appellant.

L. V. Morrill, of Snow Hill, and L. I. Moore, of New Bern, for appellees.

BROWN, J. This case was before this court at a former term, and is reported in 156 N. C. 76, 72 S. E. 95, which Is referred to for a statement of the facts.

His honor instructed the jury upon the third issue as follows: "Was the note sued on indorsed to the plaintiffs in due course and before maturity? The burden of that issue is upon the plaintiffs to satisfy you by the weight of the evidence that they received the note in due course. In the case of a negotiable instrument, the law applies to it, when you say 'due course, ' the following: That the holder in due course is the holder who has accepted the instrument under the following conditions: That the instrument is complete and regular upon its face, and that he became the holder of it before it was overdue, and without notice that it had been previously dishonored, if such is the fact."

The defendant excepted to so much of said charge as defines the meaning of "due course" as used in our statute (Revisal, c. 54, § 2201), commonly known as the negotiable instrument statute. We think the exception is not well taken. It is true that his honor omitted two essential parts of the definition as laid down in this case (156 N. C. 76, 72 S. E. 95) and Bank v. Fountain, 148 N. C. 590, 62 S. E. 738, viz.: "In good faith and for value; "and at the time it was negotiated to him he had no notice of any infirmity in the instrument, or any defect in the title of the person who negotiated it."

We think the omission was fully supplied in subsequent...