Opinion
(August Term, 1851.)
If a judge omits to charge upon a point presented by the evidence, it is no error unless he is requested to give the charge But if he makes a charge against law, it is error, unless it be upon a mere abstract proposition and it is apparent upon the whole case that it could not have mislead the jury.
APPEAL from Dick, J., at YANCEY Fall Term, 1850.
Trover for four cattle. The plaintiff proved that in 1838 the cattle were levied on and about to be sold under an execution in favor of one Ray against one Landers. On the day of sale the cattle were brought to the muster ground (the place appointed for the sale) by the wife of Landers. She sold them to the plaintiff for the price of $30.75, (294) which he paid to the officer and satisfied the execution, and then told her she might take them home and use them until he called for them.
The defendant proved that in 1843 he, as a constable, held a judgment and execution against Landers and levied on the cattle and sold them, and that the cattle and remained in the possession of Landers from the time they were taken home by his wife in 1838 up to the time of the levy. He also proved by Ray that some time after Mrs. Landers had made the sale to the plaintiff, witness said to him "he doubted if he had got a good title by his purchase from Mrs. Landers." Plaintiff replied, "he did not care, for his money had been paid back to him, or nearly so." He also proved by one Metcalf that the plaintiff told him "Landers had agreed to work for him until the money advanced was repaid, and he wished witness to tell Landers that if he did not come and work he would take the cattle away."
The court charged "that the plaintiff acquired no title to the cattle by his purchase from Mrs. Landers unless her husband had authorized her to sell at or before the sale, or had subsequently assented to it; that there was no evidence that he had authorized his wife to sell at or before the sale, nor was there any evidence that he had said anything on the subject after the sale; that if the jury believed from the testimony of Ray and Metcalf that the plaintiff had entered into an arrangement with Landers subsequent to the sale that Landers was to work for the plaintiff until his wages amounted to the price paid for the cattle, and they further believed that Landers had done the work as agreed on, the plaintiff was not entitled to recover. How that was they were to decide from the testimony of Ray and Metcalf and the additional fact that Landers had been in possession of the cattle from the time they were taken home until the levy by the defendant, a period of between four and five years." (295)
Verdict for the defendant, and the plaintiff appealed.
J. W. Woodfin for plaintiff.
Avery for defendant.
The only difficulty we have is to put a construction upon the charge. If his Honor meant there was no evidence of a ratification of a sale, clearly there is error, for the testimony of Ray and Metcalf, and the fact that the wife took the cattle home and the husband kept them in his possession for four or five years, was the strongest kind of evidence. The structure of the sentence favors this construction — "the plaintiff acquired no title unless the husband had authorized his wife to sell at or before the sale or had subsequently assented to it; there is no evidence that he authorized the sale, nor is there any evidence that he subsequently assented to it." This is what the order of the sentence called for, and we are at a loss to conceive why he used the words "that he had said anything on the subject after the sale," except on the supposition that he considered them as meaning the same thing. This must be so unless he meant to drop "a part of the idea" and depart from the order of the sentence.
If the meaning is, that to constitute a subsequent assent, it was necessary he should have said something on the subject after the sale, there is error, because an assent can be implied from acts as well as words. But taking the words literally, there is error, for there was evidence that he had said something on the subject after the sale. The defendant's own witnesses prove that the plaintiff and Landers had been talking on the subject.
It is suggested that in the latter part of the charge a ratification is assumed, and thus all objection to the former part is removed. It is true, the jury are told if they believe there was a subsequent agreement, that Landers should repay the price in work, and he did so, then the plaintiff is not entitled to recover. But here the charge stops, (296) and in any point of view in which the case is presented the plaintiff is not entitled to recover. Usually when the jury are charged that if a certain fact is established, the plaintiff is not entitled to recover, it is implied that otherwise he is entitled to recover; but when this alternative branch of the proposition is required to remove a ground of objection to a preceding part of the charge, it is necessary that it should be expressed and not be left to implication. In this case, if his Honor had gone on to say, "but unless the defendant has satisfied the jury that Landers did in fact repay the plaintiff by work, then he is entitled to recover," the objection might have been removed. As it is, we think the plaintiff has good cause to complain of the manner in which the case was put to the jury.
If a judge omits to charge upon a point presented by the evidence, it is no error unless he is requested to give the charge. But if he makes a charge against law it is error unless it be upon a mere abstract proposition and it is apparent upon the whole case that it could not have misled the jury.
PER CURIAM. Venire de novo.
Cited: S. v. Cardwell, 44 N.C. 249; S. v. Robbins, 48 N.C. 255; Huffman v. Walker, 83 N.C. 415; Brown v. Calloway, 90 N.C. 119; Terry v. R. R., 91 N.C. 242; S. v. Bailey, 100 N.C. 534; McKinnon v. Morrison, 104 N.C. 363.
(297)