Opinion
(September Term, 1895.)
Qui Tam Action — Appeal — Practice — Weights and Measures.
1. In case of a discrepancy between the case on appeal and the record the latter will govern, but where the verdict set out in the record is susceptible of different meanings and an admission of counsel set out on the case or on the argument is not contradictory but explanatory of the true meaning of the verdict, the latter will be allowed to govern.
2. The statute (section 3841 of The Code) does not make one liable to the penalty therein imposed until after his refusal to allow the standard keeper to seal and stamp the weights.
PETITION to rehear this case reported in 116 N.C. 502.
(230) R. O. Burton and B. M. Gatling for petitioner.
N. J. Rouse contra.
Petition to rehear this case reported in 116 N.C. 502. The rehearing is restricted to the following point, which is stated on page 510: "The jury find in response to the first issue that the defendant sold meat to the plaintiff by `weights which had not been examined and adjusted by the standard keeper as required by the statute.' These words,`as required by the statute,' in the verdict have the same reference to the amended section 3841 as the word `aforesaid in the statute' and can only mean that the defendant, not having complied `as required' with the duty of `allowing and permitting' his weights and measures to be sealed and stamped, did sell meat by them. " In the case settled on appeal for this Court, signed by counsel, the following appears: "It was admitted when motion was made for judgment that the defendant had not been called on by the standard keeper for the purpose of sealing and stamping his weights and measures."
It is settled by numerous cases that if there is a discrepancy between the case on appeal and the record, the latter governs. State v. Keeter, 80 N.C. 472; Adrian v. Shaw, 84 N.C. 832, and other cases cited in Clark's Code, 2 Ed., p. 579. If, therefore, the verdict had found explicitly any fact, and in the case on appeal (whether signed by counsel or settled by the Judge) an admission to the contrary of the verdict were set out as having been made during the trial, the record of the verdict would govern. But here the verdict is susceptible (231) of different meanings, and the admission set out as having been made by plaintiff or his counsel on the argument for the motion for a new trial is not contradictory to the verdict, but explanatory of the true meaning thereof, and was in open court, with the evidence fresh in mind. On the rehearing here, counsel for plaintiff did not contest the correctness of this view of the verdict and of his having made the admission thereof.
This rehearing does not call in question so much of the former opinion as passed upon the constitutional question involved, which, besides, was cited and approved in Burwell v. Hughes, 116 N.C. 430, 437.
Petition allowed.