W. C. Stronach & Co. v. Bledsoe

• Decision Date: 31 October 1881
• Citation: 85 N.C. 473
• Court: North Carolina Supreme Court
• Parties: W. C. STRONACH & CO. v. M. A. BLEDSOE.

85 N.C. 473

W. C. STRONACH & CO.

v.M. A. BLEDSOE.

Supreme Court of North Carolina.

October Term, 1881.

CIVIL ACTION tried at Spring Term, 1881, of JOHNSTON Superior Court, before Gudger, J.

The defendant appealed from the ruling of the court below.

Messrs. D. G. Fowle and A. M. Lewis, for plaintiff .

Messrs. Reade, Busbee & Busbee for defendant .

RUFFIN, J.

Of the several exceptions taken by the appellant, it is necessary that we should notice but one, since that entitles him to a new trial; and the other exceptions being addressed to matters touching the evidence and the judge's charge, may not again arise.

The point to be considered is, upon which party did the onus probandi, as developed upon the record, lie? and as a corollary to that, which of the counsel had the right to open and conclude in the argument?

If this question were res integra, I, for one, should not hesitate to declare that it ought to be left, as a matter of discretion, to the judge presiding at the trial, to be determined by him as he may think most likely to speed and facilitate the cause, by a presentation of the facts in that order most easily to be apprehended by the jury.

But it has been too long recognized as a positive legal right, a denial of which would furnish ground for an exception on an appeal, to admit of our taking any such position at this late day.

To present the point intelligently, it is necessary to state the substance of the pleadings which constituted the record.

The plaintiff complains of the non-payment of an unsealed note of which the following is a copy: “On or before the 1st day of November, A. D. 1870, I promise to pay W. C. Stronach & Co., or order, nine hundred and thirty-five dollars, for 17 tons of O. P. Merryman's Raw Bone Superphosphate, it being understood and agreed that this fertilizer is to be used and paid for out of the crop upon which it is used, on the said Bledsoe's plantation near the city of Raleigh the present year; this note to bear interest from date and the crop pledged for its payment,” (signed Feb. 17, 1870, by M. A. Bledsoe,) and alleges the same to have been executed and delivered to the plaintiff, and that no part thereof had been paid.

The answer admits the execution and delivery of the note, but says, that the consideration thereof was a sale by the plaintiff of a certain amount of so-called fertilizer, which after its delivery proved to be utterly worthless, and without mercantile value. That the plaintiff represented the article for which the note was given to be the cheapest article of the kind in the market, and equal to the highest priced guano; and relying on such representations the defendant purchased without having seen and examined it, at a certain price per ton, and plaintiff ought not, therefore, to recover more than the article was really worth, and being nothing but a fraudulent mixture of bone, sand and dirt, it was worthless. That the plaintiff warranted the article sold to be the cheapest and best in the market, and...