Perry v. Perry

• Decision Date: 16 April 1907
• Citation: 57 S.E. 1,141 N.C. 328
• Parties: PERRY v. PERRY.
• Court: North Carolina Supreme Court

57 S.E. 1

141 N.C. 328

PERRY

v.PERRY.

Supreme Court of North Carolina.

April 16, 1907.

Trial—Instructions—Argument of Counsel.

The statute gives attorneys the right to argue both law and fact to the jury. An instruction was that the cause on trial furnished a clear illustration of the importance of taking the law from the court, and not from counsel, and that a case cited by counsel for plaintiff, and relied on to establish his position, was an authority directly against that position, and that counsel knew or ought to have known it. Held that, owing to the reference to the meaning of the case, etc., the instruction was ground for reversal of a judgment against plaintiff.

[Ed. Note.—For cases in point, see Cent Dig. vol. 46, Trial, §§ 80-84, 487.]

Appeal from Superior Court, Wake County; Peebles, Judge.

Action by F. B. Perry against William Perry, as executor of the will of S. D. Perry, deceased. From a judgment in favor of defendant, plaintiff appeals. Reversed, and new trial ordered.

The court, submitted these issues: "(1) Is the defendant, as executor of S. D. Perry, indebted to the plaintiff? Answer. No. (2) If so, in what sum? Answer. None." The court dismissed the action, and plaintiff excepted and appealed.

B. C. Beckwith, for appellant.

Peele & Maynard, for appellee.

PER CURIAM. There are several exceptions set out in the record, but we deem it necessary to notice one only, which is taken to a portion of his honor's charge. The court told the jury that "the case on trial furnished a clear illustration of the importance of taking the law from the court, and not from counsel; that the case cited by counsel for plaintiff, and relied upon to establish the position that, where a party proved a special contract, he could recover what his services were worth, although he failed to show that he performed his part of the contract, or had an excuse for not performing it, was an authority directly against that position; that counsel knew, or ought to have known, that that was so." To the last sentence plaintiff excepted.

We think the exception well taken. We cannot think that the able judge who tried the case intended to reflect upon the professional integrity of counsel for the plaintiff, but, however inadvertently used, the language, was well calculated to prejudice the jury against him, and thereby tend unmistakably to weaken his client's cause. A lawyer's character and reputation for fairness, candor, and honorable dealing are as much a part of his...