Parks v. Security Life & Trust Co.

• Decision Date: 11 April 1928
• Docket Number: 353.
• Citation: 142 S.E. 473,195 N.C. 453
• Parties: PARKS et ux. v. SECURITY LIFE & TRUST CO. et al.
• Court: North Carolina Supreme Court

142 S.E. 473

195 N.C. 453

PARKS et ux. v. SECURITY LIFE & TRUST CO. et al.

No. 353.

Supreme Court of North Carolina

April 11, 1928

Appeal from Superior Court, Forsyth County; Stack, Judge.

Action commenced in the county court by E. B. Parks and wife against the Security Life & Trust Company and others. Judgment for defendants was upheld by the superior court, and plaintiffs appeal. New trial.

Special instruction regarding particular aspect of case presented by evidence should be given with substantial conformity to prayer.

Civil action to restrain sale under foreclosure and to have plaintiffs' note and deed of trust canceled upon payment less credits, which plaintiffs allege should properly be allowed.

It is alleged that on August 24, 1925, the plaintiffs executed a note in the principal sum of $5,000, secured by deed of trust on the feme plaintiff's land, for the purpose of securing a loan of this amount from the defendant Security Life & Trust Company, but that $1,000 of said amount was held back and never paid to the plaintiffs.

The note was made to F. G. Spearman & Co., as payee, and indorsed to the defendant Security Life & Trust Company, for full value, without notice of any equities or defects in the title, so the trust company alleges.

The case was made to turn on whether F. G. Spearman was acting for himself or as agent of the Security Life & Trust Company in making the loan in question. In this connection, the plaintiffs asked the trial court to instruct the jury as follows:

"The relation of principal and agent may be created by ratification with the same force and effect as if the relation had been created by appointment, as where one person adopts and takes the benefits of an act done without his authority, or in excess of it."

The request was denied, and the plaintiffs assign same as error as the evidence bearing upon the question was conflicting.

From a verdict and judgment in favor of the Security Life & Trust Company in the Forsyth county court, the court of first instance, the plaintiffs appealed to the superior court where the judgment of the county court was upheld.

From this order, the plaintiffs appeal, assigning errors.

William Porter, of Kernersville, and Siler & Barber, of Pittsboro, for appellants.

Manly, Hendren & Womble, of Winston-Salem, for appellee Security Life & Trust Co.

STACY C.J.

The rule of practice is well established in this jurisdiction that when a request is made for a specific instruction, correct in itself and supported by evidence, the trial court, while not obliged to adopt the precise language of the prayer, is nevertheless required to give the instruction, in substance at least, and, unless this is done, either in direct response to the prayer or otherwise in some portion of the charge, the failure will constitute reversible error. Marcom v. Railroad, 165 N.C. 259, 81 S.E. 290; Irvin v. Railroad, 164 N.C. 5, 80 S.E. 78; C. S. § 565.

A very full and satisfactory statement of the rule, with the reasons for its adoption, will be found in Baker v. Railroad, 144 N.C. 36, 56 S.E. 553, opinion by Walker, J., from which we quote briefly:

"We have held repeatedly that if there is a general charge upon the law of the case, it cannot be assigned here as error that the court did not instruct the jury as to some particular phase of the case, unless it was specially requested so to do. Simmons v. Davenport, 140 N.C. 407 . It would seem to follow from this rule, and to be inconsistent with it if we should not so hold, that if a special

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