Leach v. Linde

• Court: North Carolina Supreme Court
• Writing for the Court: Merrimon, C.J.
• Citation: Leach v. Linde, 108 N. C. 547, 13 S.E. 212 (N.C. 1891)
• Decision Date: 21 May 1891
• Parties: Leach et al. v. Linde.

13 S.E. 212

108 N.C. 547

Leach et al. v. Linde.

Supreme Court of North Carolina

May 21, 1891

Appeal from superior court, Wake county; Boykin, Judge.

Action by G. E. Leach and another against Charles F. Linde to recover damages of defendant for fraudulent misrepresentations by which plaintiffs were induced to lease an ice factory, and purchase certain bonds, the value of which was dependent on the value and condition of the factory. The complaint charged that defendant, to induce plaintiffs to lease the factory and purchase the bonds represented to them that the factory was in good repair, and capable of producing 15 tons of ice per day, at a cost of not more than $2.25 per ton, whereas, in fact, the machinery was in a bad condition, and was capable of producing only 4 or 5 tons a day, and that at a cost of $6 per ton. Plaintiffs repaired the machinery at a cost of $2,400, but could not make it come up to the representations of defendant. This action is to recover, as damages, the amount of the bonds and the amount spent in repairs. Defendant asked special instructions as follows: "(1) If the plant mentioned in the complaint could have been, in a reasonable time, with a reasonable outlay of money, so repaired and improved by the plaintiffs, after they took possession of the same, as to place it in the condition required by the contract, then the plaintiffs are not entitled to recover as damages the $4,000 paid for bonds as alleged in said complaint. (2) If the plant mentioned in the complaint could have been, within a reasonable time, and with the outlay of $2,400 mentioned in this complaint, so repaired and improved by the plaintiffs after they took possession of the same, as to place it in the condition required by their contract of October 6, 1888, set forth in the complaint, then the plaintiffs are not entitled to recover as damages the $4,000 paid for bonds as alleged in said complaint. *** (10) Of the damages claimed by the plaintiffs, to-wit, the sum paid for the bonds and the sum expended in repairing the plant, they are entitled to recover only such sum as was necessary to put the plant in good repair, and make it capable of producing ice as required by the contract set forth in the complaint." All of said instructions were refused.

Strong Gray & Stamps, for appellant.

Battle & Mordecai and Armistead Jones, for appellees.

Merrimon C.J.

The statute (Acts 1885, c. 180) prescribes, among other things that certain of the terms of the superior court of the county of Wake shall continue for three weeks, "to be for the trial of civil business alone." These terms are to be devoted to the proper disposition of all kinds of civil actions and proceedings pending in the court, whether they be such as require trials by jury or not. Hence the statute just cited, taken, as it must be, in connection with the other statute, (Code, c. 39, in respect to "Jurors," especially sections 1727, 1732,) contemplates and intends that a jury shall be provided for each week of the terms of the court to which reference is thus made. The third week of such terms, as well as the two preceding weeks thereof, is devoted to the disposition of civil business,-actions that generally require jury trials. How can such trials be had without a jury? Is it not obvious that the statute creating these terms intended that each week of them should have provided for it a jury, drawn in the regular method prescribed? In extending the terms of the courts for such purpose, by plain implication the duty of the county commissioners was correspondingly enlarged so as to require them to provide regularly a jury for the third week of terms. It is true that the statute (Code, § 1727) provides generally in terms for drawing for each week of the terms of the superior courts lasting two weeks, but its chief and leading purpose is to provide juries for the regular terms of the courts, and a jury for each week of them. At the time the general statute in respect to juries was first enacted the regular terms of the superior courts did not extend beyond two weeks, and hence the county commissioners were required only to provide a jury for each week of a term of that length. Afterwards, when the terms of some of the courts were extended to three weeks, as in the case of the county of Wake, the statute in respect to juries was not in terms in pertinent respects correspondingly modified, but it was in effect. The two statutes are in important respects in pari materia, and must be taken and treated together. That in regard to jurors is intended in large measure to effectuate...