Michaux v. Paul Rubber Co

• Decision Date: 02 December 1925
• Docket Number: (No. 494.)
• Citation: 130 S.E. 306
• Court: North Carolina Supreme Court
• Parties: MICHAUX. v. PAUL RUBBER CO. et al.

130 S.E. 306

(190 N. c. 617)

MICHAUX.

v.PAUL RUBBER CO. et al.

(No. 494.)

Supreme Court of North Carolina.

Dec. 2, 1925.

Appeal from Superior Court, Burke County; Slack, Judge.

Action by Martha Michaux against the Paul Rubber Company and others. Judgment for plaintiff, and defendant E. E. Barringer appeals. No error.

Defendant requested the following instruction:

"From all the evidence it appears that the defendant Barringer was not present at the time of the negotiation of the note in question, and there is no evidence tending to show that said Barringer was a party to any alleged conspiracy on the part of the Paul Rubber Company or its agents, or had any connection with the Paul Rubber Company or was an agent or officer thereof, or had in any manner conspired with any agent of said Paul Rubber Company to cheat or defraud Mrs. Michaux, and no evidence that he had any actual knowledge of the fraud or false representations by the agents or salesmen of said rubber company, inducing the execution of the notes in question, so that, if you find from the weight of the testimony that the defendant Barringer acquired said notes in good faith, for value, and before maturity, and that the said note was assigned to him as collateral security, as testified to by said defendant, it would be your duty to answer the issue, as to his being the holder thereof in due course, in his favor."

The following verdict was rendered:

"(1) Was the plaintiff, Martha R. Michaux, induced to execute and deliver the $3,000 note in controversy herein to the Paul Rubber Company by the false and fraudulent representations and assurances of the defendant, the Paul Rubber Company, and its agents, as alleged in the complaint? Answer: Yes.

"(2) If so, is the defendant E. E. Barringer a holder in due course of the $3,000 note in controversy herein, as alleged in the answer? Answer: No.

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

Spainhour & Mull and Avery & Hairfield, all of Morganton, for appellant.

S. J. Ervin and S. J. Ervin, Jr., both of Morganton, for appellee.

VARSER, J. [1, 2] The defendant Barringer assigns error for that he offered to admit in due time that the $3,000 note had been "executed and induced" by the false and fraudulent representations of the defendant Paul Rubber Company and its agents, " and asked for the opening and conclusion of the argument. The request was denied. This assignment of error is not sustained. Rules of Practice in the Superior Court, rule 6, 185 N. C. 808.

The defendant introduced evidence in his behalf and therefore did not come within rule 3, 185 N. C. 807, and the disposition of the question as to who should open and conclude the argument is not reviewable here. Churchill v. Lee, 77 N. C. 341; Johnson v. Maxwell, 87 N. C. 18; Cheek v. Watson, 90 N. C. 302; Brooks v. Brooks, 90 N. C. 142; Austin v. Secrest, 91 N. C. 214; Shober v. Wheeler, 113 N. C. 370, 18 S. E. 328; Banking Co. v. Walker, 121 N. C. 115, 28 S. E. 253; Rules of Practice, 164 N. C. 562, 563; Higgins Lumber Co. v. Shipyard Co., 181 N. C. 442, 107 S. E. 449.

The defendant's third, fourth, and fifth assignments of error relate to the charge as to the amount of recovery in favor of defendant. These instructions applied only in the event the jury found he was a holder in due course. The defendant held as collateral security to a debt due him by the Paul Rubber Company, a note called the Johnson note, and he surrendered the Johnson note, for the Michaux note, and there was a contention on part of the plaintiff, and evidence tending to support it, that the Johnson note was either worthless or of small value. The verdict of the jury on the first and second issues are decisive of this cause. The jury did not answer the third issue; hence there can be no prejudice to this defendant in the challenged instructions, and we cannot consider them. Ginsberg v. Leach, 111 N. C. 15, 15 S. E. 882; Allen v. McLendon, 113 N. C. 325, 18 S. E. 206; Stewart v. Railroad, 136 N. C. 385, 48 S. E. 793; Oannady v. Durham, 137 N. C. 72, 49 S. E. 50; Hamilton v. Dumber Co., 160 N. C. 52, 75 S. E. 1087; Beck v. Wilkins-Ricks Co., 186 N. C. 215, 119 S. E. 235; Sams v. Cochran, 188 N. C. 734, 125 S. E. 626.

The defendant contends that these instructions necessarily relate to the second issue, in so far as value is an essential element in the definition of a holder in due course. An examination of the charge discloses a careful and painstaking and successful effort on the part of the learned trial judge to relate his instructions to each issue separately. The excerpts challenged by these assignments are expressly limited to the third issue, and full and correct instructions are given on the first and second issues. They are as favorable to the defendant as our decisions will permit.

The sixth and seventh assignments of error are to the refusal of the trial court to give certain special instructions aptly and timely requested by defendant.

The requested instruction, upon which the sixth assignment is based, is covered in the charge with much particularity and directness, and the defendant had the full benefit of this principle relating to negotiable instruments held as collateral security. The court was not required to give this instruction in the exact language requested; it was sufficient to give the instruction in other language, equally explicit and clear. Shaw v. Public Service Corp., 168 N. C. 611, 84 S. E. 1010; Lewis v. Fountain, 168 N. C. 277, 84 S. E. 278; Guano Co. v. Mercantile Co., 168 N. C. 223, 84 S. E. 272; Zollicoffer v. Zollicoffer, 168 N. C. 326, 84 S. E. 349; Medlin v. Telegraph Co., 169 N. C. 495, 86 S. E. 366; Coward v. Manly, 173 N. C. 716, 92 S. E. 148; Cochran v. Smith, 171 N. C. 369, 88 S. E. 499; Mumpower v. Railroad, 174 N. C. 742, 94 S. E. 515; Talley v. Granite Quarries Co., 174 N. C. 445, 93 S. E. 995; Hall v. Giessell, 179 N. C. 657, 103 S. E. 392; Parker v. Railroad, 181 N. C. 95, 106 S. E. 755; Fowler v. Apper-son, 180 M. C. 669, 104 S. E. 753; Pusey v. Railroad, 181 N. C. 137, 106 S. E. 452; Bowman v. Fidelity Trust Co., 183 N. C. 249, 111 S. E, 162; Williams v. Hedgepeth, 184 N. C. 114, 113 S. E. 602.

The requested...