Volume 187 — North Carolina Reports

<p>Carriers — Railroads—Bills of Lading — Stipulations as to Commencing Suit — Actions—Evidence—Nonsuit.</p> <p>Tbe law imposes a duty upon a common carrier to transport goods it bas accepted' safely, and to deliver them witbin a reasonable time; and under its contract of shipment, providing that suits for loss, damage or delay shall be instituted only witbin two years and one day after a reasonable time for delivery has elapsed, and tbe evidence in tbe action tends only to show that this bad not been done, defendants’ motion as of nonsuit thereon is properly granted.</p>

Grady, J., at February Term, 1923, of Graven. Tbe plaintiff was the owner of the “Lallie,” a boat propelled by gas, wbicb be operated as a common carrier of passengers and freight for hire. In September, 1921, while proceeding along Swift Creek, between New Bern and Yaneeboro, the boat struck a log and was so badly damaged that it listed and soon afterwards went to the bottom of the stream and was lost.

<p>1. Bills and Notes — Fraud—Burden of Proof.</p> <p>Where the defendant admits the execution of his note sued on, and defends upon the ground of fraud, the burden is on him to prove his defense.</p> <p>2. Evidence — Directing Verdict.</p> <p>Upon plaintiff’s motion for a direction of the verdict upon the evidence, the evidence will be taken in the light most favorable to the defendant, giving him the benefit of all reasonable inferences therefrom.</p> <p>3. Vendor and Purchaser — Deeds and Conveyances — Warranty—Fraud— Questions for Jury.</p> <p>The plaintiff contracted to sell the defendant his farm, and implements therefor, in contemplation of the latter’s possession for the purpose of cultivating it, and delivered to him a deed, with full covenants and warranty. In an action to recover upon the purchase-money notes there was evidence tending to show that defendant was induced to purchase by plaintiff’s false representations as to existing liens on the land, which resulted in a receiver, appointed at the suit of the lienors, and the prevention of the defendant’s possession and the loss of his title: Held, sufficient to take the issue of fraud to the jury.</p>

<p>This is ail appeal from a justice of the peace for recovery of $165.76, the alleged value of a shipment of merchandise on the gas-boat “Clinton” in transit from Washington, N. 0., to Juniper Bay, in Hyde County. The plaintiff contended that the defendants were the owners of the gas-boat and were liable for the value of the goods which were destroyed when the boat was burned, and alleges that the burning of the boat was due to negligence on the part of the owners.</p> <p>The defendants Hudson and Oredle admitted in their answer that they were the owners of the gas-boat, but denied any negligence on their part, alleging that the goods were transported on a vessel registered in the United States Customs House; that the fire was not caused by any design or neglect on their part, and that they were protected from liability as owners of the vessel under the Federal statute. At the close of the plaintiff’s evidence, motion of nonsuit was allowed, and plaintiff appealed.</p>

<p>Appeal from Bond, J., November Term, 1923, of PasquotaNK, from an order of the clerk refusing to sign judgment tendered by the plaintiff.</p> <p>On 1 May, 1922, the defendants signed the note sued on. The plaintiff brought suit against both of the makers. The defendant Mann filed no answer, but the defendant Brock filed an answer, admitting his liability for one-half the note, less a credit of $419 which he personally had paid, alleging that it was agreed at the time of the execution of the note that he was to be bound for only one-half, and that the payee had expressly agreed to release him from any and all liability over one-half.</p> <p>Bond, J., signed the judgment- in the record against the defendant Brock for one-half the note, less the credit which he had paid, and ordered that the question as to his liability upon the other half be submitted to a jury, without prejudice to the plaintiff.</p> <p>Tbe plaintiff contended that there was no issue raised by Brock’s answer to be submitted to the jury except his liability on the second half, or Mann’s half, of the note, and as to that he had expressly admitted his liability, and there were no facts to be found by the jury. In the Superior Court the defendant ~W. A. Brock was permitted to amend his answer to aver that said one-half was to be in full and complete satisfaction of plaintiff’s claim against said Brock. The court entered judgment against said Brock for $2,243.74, with interest from date of judgment, being one-half of the full amount of the note, deducting the payment of $419, and ordered that the question of the liability of the defendant W. A. Brock upon the remainder of the note or bond sued upon should be submitted to a jury. From this judgment the defendant Brock appealed.</p>

, at Fall Term, 1923, of Olay. Tbe plaintiff, in Olay County, N. 0., in February, 1922, killed and dressed a bog, weighing 595 pounds, and on tbe next day delivered it to tbe defendant express company to be shipped to Dr. Outts, president of Willingham School, at Blue Ridge, Ga.

<p>1. New Trials — Partial New Trials — Issues—Appeal and Error.</p> <p>Where damages are sought in an action against a carrier for a personal injury involving the issues of negligence and assumption of risks, and the Supreme Court, on appeal, has granted a new trial only on the issues of damages, these issues are properly refused by the judge upon the retrial of the case, the remedy being by a petition to rehear in the Supreme Court under its Rules of Practice.</p> <p>2. Same — Damages — Evidence — Carriers — Railroads — Federal Employers’ Liability Act.</p> <p>Under the Federal Employers’ Liability Act, contributory negligence is considered in diminution of the employee’s damages for personal injury alleged to have been caused by the defendant’s negligence; and upon a new trial awarded by the Supreme Court upon the issues of damages alone, it is reversible error for the trial judge to exclude evidence of this character under the defendant’s objection, when confined to this phase of the controversy, the amount of the damages being for the jury to determine upon conflicting evidence.</p>

, of tbe Thirteenth Judicial District. From a perusal of tbe record it appears that on 3 August, 1923, propounder offered for probate a paper-writing purporting to be tbe last will and testament of R. E. Little, deceased, duly witnessed, and designating, by codicil thereto, tbe Bank of Wadesboro, N. 0., as executor ; and also offered prepared proof by tbe said, witnesses of tbe due execution of tbe will and codicil thereto.

<p>Contracts — Co-operative Marketing — Landlord and Tenant — Statutes— Liens — Possession—Trusts—Nonnxemfoer Tenant — Penalties-.</p> <p>Tbe landlord and tenant act (C. S., 2355) gives tbe landlord only a preferred lien on bis tenant’s crop on bis. rented lands for tbe payment of tbe rent; and unless and until tbe landlord bas acquired a part of his tenant’s crop for tbe rent, be bas acquired nq tobacco from bis tenant that comes within tbe provisions of his membership contract in tbe Tobacco Growers Cooperative Association, and is not liable for the penalty therein eontained'for failure to market tbe tobacco raised by Ms tenant.</p>

Civil ACTION beard on return to preliminary restraining order before bis Honor, Shaw, J., on 22 May, 1923, from AlamaNce. Tbe action is for a permanent injunction restraining defendants from collecting or attempting to collect by execution and levy a certain judgment obtained by P. M. King, administrator of Maggie Barber, deceased, against tbe North Carolina Railroad Company, hereafter called plaintiff.

Appeal by plaintiff from Lane, J., at October Term, 1922, of BuNCOMBE. Civil action brought by plaintiff against defendants to rescind and cancel a supply contract bond executed by the defendant Carolina Dray Company (hereafter called Dray Company), as principal, and the plaintiff Globe Indemnity Company, a corporation (hereafter called Indemnity Company), as surety.

, at March Term, 1923, of Eici-imoND. Civil action. In this canse a complaint was filed, and an answer, an amended complaint, and an answer thereto, and a reply. Tbe plaintiff, Betsy Long, brought this action against the defendant, the town of Rockingham, to recover possession of about 10 15-16 acres of land near the town of Rockingham, which she claimed was illegally taken by the town of Rockingham and used as a cemetery, and for damages.

Appeal by defendant from Finley, J., and a jury, at February Term, 1923, of Caldwell. Tbe plaintiffs allege, in part: “That on 11 June, 1921, tbe defendants, Eliza P. Harsbaw, Hal C. Martin and Jobnsie Martin, executed and delivered to J. W. Self, a real estate dealer of Caldwell County, North Carolina, a written contract in words and figures as follows: “PROPERTY CONTRACT. J. W. Self, Beal Estate.

Appeal by plaintiff from GalveH, J., at March Term, 1923, of SAMPSON. The facts pertinent to the points involved in the appeal are as herein set out: The action was brought by Chas. W. Bell against William A. Danzer, Cleveland A. Trantum, Robert M. Rupp, and Troy I. Herring for the recovery of $17,500, with interest thereon from 16 March, 1918, representing the par value of $17,500 of a $25,000 issue to Chas.

<p>1. Evidence — Questions for Jury — Trials.</p> <p>Where there is more than a scintilla of evidence to support plaintiff’s claim, art issue of fact is presented which is for the jury to determine and not a matter of law for the court.</p> <p>2. Banks and Banking — Principal and Agent — Bills and Notes — Negotiable Instruments — Holder in Due Course — Agency for Collection.</p> <p>A bank is an agency for collection and not a purchaser in due course when it discounts its depositor’s negotiable paper under an arrangement with him to charge it back to his account if the maker fails or refuses' to pay it, and this condition may be implied from the course of dealings between them.</p> <p>3. Same — Evidence—Questions for Jury — Trials.</p> <p>While a bank purchasing a negotiable instrument before maturity and for value, prima facie takes the paper' free from any infirmity in the instrument (O. S., 3032, 3033), it may be shown to the contrary that there was an arrangement between the bank and its depositor that the former had acquired the paper under an arrangement to charge it back to its depositor in the event of nonpayment by the maker; and where the testimony is conflicting, an issue of fact is presented for the jury to determine as to whether the bank was a holder in due course or merely an agency for collection.</p> <p>4. Same.</p> <p>Evidence in this case of certain written agreements between the bank and its depositor to the effect that the bank should collect the papers of its depositor that it had discounted, providing for the expense, etc., is held sufficient evidence to take the issue of fact to the jury for their determination of the question whether the bank was a holder of the negotiable instrument for value, in due course, as a purchaser before maturity, or was only an agency for collection.</p> <p>5. Sanie — Mortgages—Mens—Waiver.</p> <p>Where there is evidence that a finance corporation had accepted from its depositor, a concern manufacturing motor trucks, a certain negotiable instrument in a series of transactions as an agency for collection, together with a prior registered contract of the manufacturer retaining title to the autoi truck, and there was also evidence that the truck in question had been sold to the manufacturer’s sales agent within a certain territory who had, with the knowledge and consent of the officers of the manufacturing concern, sold it to the defendant under a general authority with the manufacturer, who received the benefits of the transaction : Held, the question was for the determination of the jury as to whether the manufacturer had waived its right of lien, and parol evidence of the manufacturer’s ratification through its proper officers does not fall within the statute of frauds, and is admissible.</p>

<p>1. Schools — School Districts — Combination — County Board of Education — County Commissioners — Taxation—Elections—Statutes.</p> <p>The county board of education may form new school districts by combining contiguous or adjoining special local with nonspecial existing tax districts (art. 18, ch. 136, Public Laws 1923), and upon petition of the voters filed under section 219, article 7, a valid election may be called by the county commissioners under the further provision of said article IS to vote upon the question of a special tax for the district so formed under the statutory limitations ds to the rate imposed, and the observance of the condition required by the_ statute to take care of the indebtedness already incurred by such of the special districts thus in the combination as may have theretofore voted for a special school tax within their former boundaries. The question as to special-charter school districts is' not presented in this case.</p> <p>3. Same.</p> <p>Where, by proper statutory procedure, a school-tax district has been formed by a combination of existing special and nonspecial local-tax districts, and accordingly the county commissioners have called an election for the approval of the voters of a special tax, such approval by a majority of the electors registered therein is valid, the election being for the new district thus formed, and the fact that one or several of the districts incorporated had voted against the proposed tax does not invalidate it. The sections of the Consolidated Statutes requiring the.separate approval of the voters of the nonspecial school-tax territory have no application.</p> <p>3. Same. — Constitutional Law — Statutes.</p> <p>Where nonspecial school-tax districts have been combined into a school-tax district with special school-tax districts, the nonspecial tax districts cannot maintain the position that it was necessary to the valid imposition of a special tax for school purposes within the district thus created, that the voters within each nonspecial tax district should approve it. Article 18, chapter 136, Public Laws 1923, otherwise providing, the Legislature having almost unlimited constitutional authority over these local agencies of government, and may at any time change and combine them, irrespective of territorial limits, by safeguarding certain restrictions imposed by the Constitution.</p>

Apkgal by defendants from Harding, J., at October Term, 1923, of MECKLENBURG. Tbis action was brought to recover damages for tbe wrongful death of tbe husband of tbe testator, who was killed at a grade crossing over tbe tracks of tbe defendant, at Linwood, near noon, on 26. September, 1922.

Appeal by plaintiff, M. L. Matthews, from Daniels, J., at September Term, 1923, of Lee. Civil action to recover damages for an alleged negligent burning and injury to plaintiff’s lands and timber. From a verdict and judgment in-favor of defendant, the plaintiff appeals, assigning errors.

<p>Evidence — Declarations—Boundaries.</p> <p>A distinction stwuld be observed between hearsay evidence and evidence by reputation as to boundaries of land in dispute in an action, the latter applying only to ancient boundaries, and the former to declarations, of deceased persons, as to boundaries of more recent origin, it being required as to both kinds of evidence of this character that the declarations come from a disinterested person, ante litem motam, and the death of the declarant who therefore is unable to be produced as a witness at the trial, and such declarations made after the controversy arose, not merely before suit was brought, when the declarant is not shown to be a disinterested person, is reversible error.</p>

Appeal by plaintiff from Staclc, J., at November Term, 1923, of RICHMOND. The following is the record of the instruction given the jury: “If you believe the evidence in this case, the court instructs you to answer this issue, which is, 'In what amount, if any, are defendants indebted to the plaintiff,’ to answer that issue the amount of the three notes sued on, with credits of $9.90, $39.25, and $76.16.

Appeal by plaintiff from Sinclair, J., at chambers, 27 March, 1924. This was an action to recover tbe balance due on an account for goods sold and delivered. Tbe defendants were sued jointly and a joint judgment askecl against them. The defendant J. L. White filed answer, 8 December, 1923, and the defendant J. F. White tendered his answer on 5 December, 1923.

<p>1. Criminal Law — Homicide—Intent—Evidence—Accident.</p> <p>Where two or more conspire together and are the aggressors in a resulting fight with firearms, and in consequence their adversary unintentionally kills an innocent bystander, his antagonists are not responsible for the killing, and cannot be lawfully convicted of the homicide, as there was no concerted action by them in that respect.</p> <p>2. Criminal Law — Secret Assault — Statutes—Instructions—Appeal and Error.</p> <p>WMle it is not required for the conviction of a secret assault, under the provisions of O. S., 4213, that the assailed should not have been aware of the presence of his assailant, it is necessary that the purpose of the assailant be not previously made known to him; and where the evidence does not tend to show that it was a secret assault, within the intent and meaning of the statute, an instruction to the contrary is reversible error.</p> <p>3. Criminal Ivaw — Forcible Trespass — Evidence.</p> <p>Where there is evidence that the defendant, indicted with others for forcible trespass, was present and acting in concert with another, who forced his way into a dwelling and took by force an occupant therefrom, and thereafter helped force him into the yard, he is guilty of the offense charged in unlawfully invading the possession of another by being present and violently assisting with a strong hand.</p>

Appeal by defendants from Allen, J., at September Special Term, 1923, of Hyde. Civil action to recóver damages for an alleged negligent injury to plaintiffs’ crops and lands occasioned by defendants’ failure to keep in proper condition their portion of a common canal constructed for the drainage of the lands of both plaintiffs and defendants, adjacent landowners. From a verdict and judgment in favor of plaintiffs, defendants appeal.