Withers v. Lane

• Citation: 144 N.C. 184,56 S.E. 855
• Court: United States State Supreme Court of North Carolina
• Decision Date: 20 March 1907
• Parties: WITHERS. v. LANE.

144 N.C. 184

56 S.E. 855

WITHERS.

v.LANE.

Supreme Court of North Carolina.

March 20, 1907.

Trial — Instructions — Invasion of Jury's Province.

An instruction in replevin, reciting that plaintiff's testimony was contradicted, and placing it in an unfavorable light before the jury, while that of the defendant was treated with greater consideration, was erroneous, as invading the jury's province and intimating the court's opinion as to its weight.

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

Action by J. A. Withers against J. W. Lane. From a judgment for defendant, plaintiff appeals. Reversed, and new trial granted.

This action was brought to recover the possession of two mules. The plaintiff bought a mule from the defendant for $175, and gave his note for the purchase price, secured by a mortgage on the two mules described in the complaint. He alleged that the defendant had warranted the soundness of the mule he bought, and afterwards he proved to be unsound; that he returned the mule to the defendant, paying him $30 for the use of it, and they then agreed to compromise and settle the differences, the defendant specially agreeing to surrender the note and mortgage, but that he got possession of the two mules in violation of the agreement and refused to return them. The court charged the jury in part as follows: "It is alleged in the complaint and admitted that in March, 1905, plaintiff conveyed the mules in question to defendant to secure the payment of a note for $175, due October 1, 1905. This put the title to the mules in the defendant. But the plaintiff alleges that on December 1, 1905, there arose a dispute between him and defendant as to the soundness of the mule's eyes, and he went to Dunn, saw the defendant, and compromised and settled the whole matter; that the defendant took the mule back, received $30 for its hire, and promised to surrender the note and the mortgage to plaintiff. This action therefore depends almost entirely upon how you find the first issue. Upon that issue the burden is upon the plaintiff to satisfy you by the greater weight of evidence that the $30 paid December 1, 1905, at Dunn, was paid and received in full compromise of the $175 note. If he has done that, then you should answer the first issue: 'Yes.' Otherwise, you should answer it: 'No.' In other words, the whole matter depends upon whether you find the facts to be as testified to by plaintiff or as testified to by defendant and Jethro McLamb. The testimony of plaintiff is not corroborated by a single witness, but is contradicted by his own affidavit filed in this action on December 2, 1905, the next day after the $30 was paid. In that affidavit, he swore that the mule was his property, and he was entitled to the immediate possession of it. If the settlement was made the day before, and the mule was taken back by defendant, this affidavit was false. If the affidavit was true when filed, his statement here as to the settlement was false. He is contradicted by the receipt, which he took from defendant when the $30 was paid. This receipt says the money was paid on the mule note. He is contradicted by defendant and McLamb, who say the money was paid on the mule note, and nothing was said about a compromise. On the other hand, Lane is corroborated by McLamb, and by the receipt given to plaintiff December 1, 1905, for the $30; and if you find that the receipt on the $175 [mortgage note] was put there at the time the money was paid, and in the presence of plaintiff, then he is corroborated by that. In passing upon the testimony of plaintiff, it is your duty to consider the fact that he is interested in the resultof this action, ascertain, as best you can, what influence this will have upon his testimony, consider what the witnesses said about his good character, consider the fact that he is contradicted by his affidavit filed in this action, and by the receipt he took for the $30, and then give to his testimony that weight and credit which, under all the circumstances, you think it entitled to. If you think he told the truth, you should give to his testimony the same weight and credit you would give to any other witness. Plaintiff testified that, when the $30 was paid, no one was in the office but him and Lane. Lane and McLamb testified that plaintiff, Lane, McLamb, and plaintiff's brother, S. W. Withers, were in the room. S. W. Withers was present in the courtroom and a witness for plaintiff, and he did not put him on the stand to support himself and contradict Lane and McLamb. This circumstance you can consider also. When you go to consider Lane's testimony, it is your duty to consider the fact that he is interested in the result of this suit, and you must ascertain, as best you can, what effect that interest had upon the truthfulness of his testimony; consider what the witnesses said about his character, the fact that he is corroborated by McLamb and by the receipt given plaintiff when the $30 was paid, which said, 'Received $30 on mule note, ' and then give to Lane's testimony that weight and credit which, under all the circumstances, you think it is entitled to. The greater weight of the evidence does not necessarily mean the greater number of witnesses, but it means that testimony which carries home to your hearts and minds the greater amount of conviction. Where conflicts of testimony can be reconciled in a way consistent with the honest convictions of the witnesses, it is your duty to do so; but, when it cannot be thus reconciled, it is your duty to determine which lied. The plaintiff says that the $30 was paid in full settlement and compromise of the $175 note, and that the mule was taken back by Lane. Lane and McLamb say that the $30 was paid on the $175 note, and not a word was said about any compromise or about taking the mule back. The conflict between these statements cannot be reconciled—the plaintiff lied or Lane and McLamb lied. It is for you to say who told the lie. If the testimony of the plaintiff, unsupported, satisfies you that the $30 was paid for the hire of the mule, which was taken back, and the $175 note and mortgage were to be surrendered, then it is your duty to answer the first issue, 'Yes'; otherwise to answer it, 'No.' If you answer the first issue, 'Yes, ' you should answer the second and fourth issues, 'Yes, ' and to the third issue what you find the mules were worth when seized. If you answer the first issue, 'No, ' you should answer the second and the fourth issues, 'No, ' and make no answer to the third. At the request of the defendant, I here give all the evidence introduced." His honor then proceeded to state the evidence. Exceptions to the charge were taken by the plaintiff. A verdict was returned for the defendant, upon which judgment was entered, and the plain tiff appealed.

Godwin & Davis and D. H. McLean, for appellant.

Stewart & Muse and Godwin & Townsend, for appellee.

WALKER, J. (after stating the case). The Legislature has wisely provided that no judge, in charging a jury, shall intimate whether a fact is fully or sufficiently proven; it being the true...