Opinion
(June Term, 1864.)
1. If the general issue be pleaded together with special pleas, and the jury find all the issues in favor of the defendant, the Supreme Court cannot reverse the judgment of error in the charge of the judge respecting the matter of the special pleas.
2. It cannot be assigned for error that the judge did not charge the jury on a point which the party did not make at the trial.
ACTION of debt, tried before Shipp, J., at Fall Term of MACON, 1863.
The declaration was for $500 claimed by the plaintiff to be due to him by virtue of a deed executed by the defendants, the contents of which it is unnecessary to state, as its construction is not brought into question. The defendants pleaded the general issue, conditions performed, and no breach. The plaintiffs assigned two breaches: (1) That the defendant had discovered a valuable copper mine, and sold it before 25 December, 1859. (2) That he was satisfied that it was proved to be a valuable copper mine: in either of which cases they insisted that the (211) defendant was bound to pay the sum of $500.
The subscribing witness was introduced and proved the execution of the instrument declared on. Mr. Cannon was introduced as a witness by the plaintiffs, who testified that he went with plaintiff Higdon to the defendant Chastaine, before the bringing of this suit, and demanded the $500 or a surrender of plaintiff's lease, offering to settle and pay the defendant's expenses. The defendant refused to pay the $500, but said he would pay if he could sell the mine for $10,000, and that he could not surrender the lease, because there was some sort of contract upon the mine. This evidence was objected to by the defendant, but admitted by the court. The defendant's counsel moved to nonsuit the plaintiffs, which motion was overruled. The cause was submitted to the jury upon this testimony, and the counsel for the plaintiffs insisted that the testimony proved a breach of one or the other of the conditions mentioned in the agreement, and pressed his right to recover upon this ground alone. The court charged the jury that if the testimony of the witness Cannon satisfied them that the defendant had committed either of the breaches of the agreement assigned by the plaintiffs, viz., if the proof satisfied their minds that the defendant had discovered a valuable copper mine and sold it as such, or that he was satisfied that it was proved to be a valuable mine as contemplated in the agreement, the plaintiffs were entitled to their verdict of $500 and interest; and if they were not satisfied of these facts, the defendant was entitled to their verdict. There was no exception to the charge. There was a verdict in general terms for the defendant. Rule for a new trial. Rule discharged, and the plaintiffs appealed to the Supreme Court.
(212) Merrimon for plaintiffs.
No counsel for defendant.
This was an action of debt in which the plaintiffs declared upon a sealed instrument, and assigned breaches of the conditions annexed to it. The defendant pleaded the general issue and conditions performed and not broken. Upon the trial, the jury found a verdict for the defendant; and it is stated in the case that there was no exception taken to the charge of the court to the jury. Yet there was a motion for a new trial, which being refused, and a judgment rendered for the defendant, the plaintiff appealed.
We cannot discover any error which we are at liberty to redress. The plea of the general issue made it necessary for the plaintiffs to prove the execution of the instrument declared on, and they introduced and examined the subscribing witness, who testified that it was duly executed: and they also offered evidence for the purpose of proving the breaches assigned. It does not appear that any testimony was introduced on the part of the defendant. The court charged the jury upon the bearings of the evidence, and no objection was made to the charge. The jury returned a verdict generally "for the defendant," which of course negatives the execution of the instrument upon which the suit was brought. Upon this state of the record it is out of our power to notice any improper instructions upon the evidence given in relation to the breaches, even if there were any such; for if the execution of the instrument were not established, what was said about its breaches must have been irrelevant.
It has been repeatedly decided in this Court that in an action of assumpsit, if the defendant plead the general issue and the statute of limitations, and the jury find "all the issues for the defendant," the court cannot inquire into the correctness of the charge in (213) relation to the issue on the latter plea. Morisey v. Bunting, 12 N.C. 3; Mastin v. Waugh, 19 N.C. 517; Cole v. Cole, 23 N.C. 460. The present appears a parallel case, and must receive the same determination.
But it is said in the argument here that the plaintiffs were not bound to assign breaches of the bond, and to offer proof in support of them, and that upon the testimony offered by them to establish the execution of the instrument sued on, the court ought to have told the jury that if they believed the testimony the plaintiffs were entitled to recover. The reply is, that the court was not bound to instruct the counsel for the plaintiffs in the management of their case; and it was not error of which they have a right to complaint that he did not charge the jury upon a point which they did not think proper to take. They made no objections to his instructions upon the questions which they presented, and after a verdict generally in favor of the defendant, they are estopped from making exceptions founded on their own mismanagement.
No error.
Cited: Thornburgh v. Mastin, 93 N.C. 263.