McRae v. . Fox

ADAMS, J., did not sit. The following issue was submitted to the jury: "Did the defendant, L. G. Fox, endorse the bonds declared on, leaving out the words `without recourse to me' by mutual mistake between himself and the plaintiff, W. P. McRae, as alleged in his answer?"; to which the jury responded "Yes." The appeal presents two questions for our consideration. The plaintiff assigned as error that the court (345) overruled the motion to nonsuit. The evidence must be taken on such motion in the light most favorable to the defendant upon whom rested the burden of proving this issue.

The defendant, Fox, testified that after he became the holder of the bonds, the plaintiff began negotiations with him for a certain house in the town of Rockingham for which McRae asked $2,500; that after some conversation about the matter, Fox testified that he told the plaintiff, McRae, that he had $3,000 in bonds that had been transferred to him by T. T. Cole and which were secured by mortgage against G. W. Lee on 140 acres of land near Rockingham; that he did not know anything about the land or its value but that he would give McRae the bonds for the house; that McRae insisted that Fox buy the house and *Page 364 give him his note which Fox did not agree to but that he would give the $3,000 in bonds; that McRae then suggested that Fox endorse them, to which Fox testified that he replied that if he did this he would be just as liable as if he had given McRae his individual note. Fox testified further that McRae then asked to take the bonds to the bank so that he might inquire about the value of the land secured thereby and later brought the bonds back to Fox and told him that he would take them on the trade for the house; that Fox had told him that he would not endorse the notes but that he would trade with him if he would take the bonds and relieve him of any further liability thereon, to which Fox said he replied that McRae said "all right." He said he got the bonds out and looked at them and the endorsement thereon was "Pay to L. G. Fox without recourse to me. (Signed) T. T. Cole"; and thereupon he signed his name thinking that the bonds under the agreement between him and McRae was that he was assigning them without recourse and he wrote on them simply "Pay to W. P. McRae" and signed his name.

He further testified that when McRae brought the bonds back after he had shown them to the bank, as above stated, he kept them for two or three weeks when McRae having moved the house over upon Fox's lot, which was a part of their agreement, he signed his name on the back of the bonds and sent them to McRae; that McRae asked $2,500 for the house and the agreement was that he was to take the $3,000 notes without endorsement by Fox for the house.

The plaintiff, W. P. McRae, testified there was nothing said about the notes being endorsed without recourse. There was full testimony by both parties and the jury found the issue in favor of Fox.

We cannot sustain the contention of the plaintiff that the motion for nonsuit should have been granted. There was very full evidence on both sides; the issue was squarely raised and the jury found (346) in favor of the defendant.

The plaintiff further contends that the court did not charge that the burden was on the defendant to prove the mutual mistake by evidence that was "clear, strong and convincing." The court charged the jury three times upon this proposition. He said that "as the plaintiff alleges, the burden is upon Fox to prove it (the mutual mistake) and show by evidence that shall produce satisfaction to the mind upon all the evidence that there was a mutual mistake between Fox and McRae." Again the court charged the jury: "Has he satisfied you on that so that you can say and are satisfied that it was a mistake at the time — a mutual mistake between him and McRae; that is what he alleges now, and if he has satisfied you of it as the face of the paper has not those *Page 365 words (without recourse) and he has alleged there was mistake, I stated to you that the burden was upon him to satisfy you that there was a mistake and the kind of mistake he alleges there was."

And again the court charged the jury: "Has he satisfied you by the evidence, clear and convincing, that those words should have been there? If the defendant has so satisfied you and this in the manner which I have explained to you, your answer to the issue should be `Yes.' If he has failed to so satisfy you, your answer to this issue should be `No.'"

It is true that the usual phrase is "clear, strong and convincing" but these exact words are not absolutely indispensable. They are not "sacramental words," S. v. Arnold, 107 N.C. 862, but it is sufficient if the expression used conveyed to the minds of the jury the same meaning. The use of the words here "clear and convincing" together with the twice repeated expression that unless the jury was so satisfied "in the manner in which he had explained to the jury," that is by "clear and convincing" evidence that they should answer the issue "No," was sufficient."

In Mendenhall v. Davis, 72 N.C. 150, it was held that parol evidence was admissible to show that an endorsement in blank was made with the understanding that it was to pass the title and without any assumption of liability. In Comrs. v. Wasson, 82 N.C. 308, it was held that an endorsement could be construed as simply passing the title. The plaintiff's contention, however, does not seem to controvert that proposition but rests upon the ground that the charge "Has he satisfied you by the evidence, clear and convincing" was not sufficient, but was defective because of the omission of the further word "strong" or "cogent."

In S. v. Arnold, 107 N.C. 862, in discussing the words for which no synonyms can be substituted in indictments, it was held that while "feloniously," "with malice aforethought," and "murder" are essential to the validity of the indictments, requiring them, that there were no other "sacramental words," that is, words which admitted (347) of no substitute and especially that "wilfully and unlawfully" could be expressed by other words conveying the same idea.

The entire controversy depended solely upon the question whether the words "without recourse" were omitted by mutual mistake. On this there was a direct conflict of evidence and when the jury were told to find the issue in the negative unless they were satisfied by clear and convincing proof, they must have understood this required proof that was strong and cogent. While it is best always to follow the customary expressions and terms, if for no other reason because it will avoid such debates as this and will prevent experiments in language — whether in civil or criminal cases — we do not see that the expression "clear and *Page 366 convincing proof" which would satisfy the jury, was not sufficient to convey to their minds the same idea that would have been conveyed if the additional word "strong" or "cogent" had been used.

It is more probable that the testimony of defendant that the plaintiff asked $2,500 for the house (and the plaintiff admitted it was $2,750) was clear and convincing to the jury that $3,000 in bonds, with the interest thereon, was agreed upon because not endorsed.

We have held frequently and consistently that the charge of the court should be construed in its entirety and not by any detached portions.

Taking the evidence of the defendant, Fox, and that of the plaintiff, together with the charge of the court, we think that the controverted point together with the necessary intensity of proof required, must have been fully understood by the jury and that they found the issue intelligently and understandingly and we cannot on appeal disturb the verdict merely because the word "strong" (or "cogent") was not added to the phrase that the proof must be "clear and convincing."

No error.

ADAMS, J., did not sit.

The following issue was submitted to the jury: “Did the defendant, L. Gf. Fox, endorse the bonds declared on, leaving out the words 'without recourse to me’ by mutual mistake between himself and the plaintiff, W. P. McRae, as alleged in his answer?”; to which the *345jury responded “Yes.” Tbe appeal presents two questions for our consideration. Tbe plaintiff assigned as error tbat tbe court overruled tbe motion to nonsuit. Tbe evidence must be taken on sucb motion in tbe light most favorable to the defendant upon whom rested tbe burden -of proving this issue.

Tbe defendant, Fox, testified that after be became the bolder of tbe bonds, the plaintiff began negotiations with him for a certain bouse in tbe town of Rockingham for which McRae asked $2,500; tbat after some conversation about tbe matter, Fox testified tbat be told tbe.plain-tiff, McRae, tbat be bad $3,000 in bonds tbat bad been transferred to him by T. T. Cole and which were secured by mortgage against G. W. Fee on 140 acres of land near Rockingham; tbat be did not know anything about tbe land or its value but tbat be would give McRae the bonds for tbe bouse; tbat McRae insisted tbat Fox buy tbe bouse and give him bis note which Fox did not agree to but that be would give tbe $3,000 in bonds; tbat McRae then suggested tbat Fox endorse them, to which Fox testified tbat be replied tbat if be did this be would be just as liable as if be bad given McRae bis individual note. Fox testified further tbat McRae then asked to take tbe bonds to tbe bank so tbat be might inquire about tbe value of tbe land secured thereby and later brought the bonds back to Fox and told him that be would take them on tbe trade for tbe bouse; tbat Fox bad told him tbat be would not endorse tbe notes but tbat be would trade with him if be would take tbe bonds and relieve him of any further liability thereon, to which Fox said be replied tbat McRae said “all right.” He said he got tbe bonds out and looked at them and tbe endorsement thereon was “Pay to L. G. Fox without recourse to me. (Signed) T. T. Cole”; and thereupon be signed bis name thinking tbat tbe bonds under tbe agreement between him and McRae was tbat be was assigning them without recourse and be wrote on them simply “Pay to W. P. McRae” and signed his name.

He further testified tbat when McRae brought tbe bonds back after be bad shown them to the bank, as above stated, he kept them for two or three weeks when McRae having moved tbe bouse over upon Fox’s lot, which was a part of ¿heir agreement, be signed bis name on tbe back of tbe bonds and sent them to McRae; tbat McRae asked $2,500 for tbe bouse and tbe agreement was tbat he was to take tbe $3,000 notes without endorsement by Fox for tbe bouse.

Tbe plaintiff, W. P. McRae, testified there was nothing said about tbe notes being endorsed without recourse. There was full testimony by both parties and tbe jury found the issue in favor of Fox.

We cannot sustain tbe contention of the plaintiff tbat tbe motion for nonsuit should have been granted. There was very full evidence on *346botb sides; tbe issue was squarely raised and tbe jury found in favor of tbe defendant.

Tbe plaintiff further contends tbat tbe court did not charge tbat tbe burden was on tbe defendant to prove tbe mutual mistake by evidence tbat was “clear, strong and convincing.” Tbe court charged tbe jury three times upon this proposition. He said tbat “as tbe plaintiff alleges, tbe burden is upon Eox to prove it (the mutual mistake) and show by evidence tbat shall produce satisfaction to tbe mind upon all tbe evidence tbat there was a mutual mistake between Eox and McRae.” Again tbe court charged tbe jury: “Has be satisfied you on tbat so tbat you can say and are satisfied tbat it was a mistake at tbe time — a mutual mistake between him and McRae; tbat is what be alleges now, and if be has satisfied you of it as tbe face of tbe paper has not those words (without recourse) and be has alleged there was mistake, I stated to you tbat tbe burden was upon him to satisfy you tbat there was a mistake and tbe kind of mistake be alleges there was.”

And again tbe court charged tbe jury: “Has be satisfied you by tbe evidence, clear and convincing, tbat those words should have been there ? If tbe defendant has so satisfied you and this in tbe manner which I have explained to you, your answer to tbe issue should be ‘Yesd If be has failed to so satisfy you, your answer to this issue should be No.’ ”

It is true tbat the usual phrase is “clear, strong and convincing” but these exact words are not absolutely indispensable. They are not “sacramental words,” S. v. Arnold, 107 N. C., 862, but it is sufficient if the expression used conveyed to the minds of the jury the same meaning. the use of the words here “clear and convincing” together with the twice repeated expression tbat unless the jury was so satisfied “in the manner in which be bad explained to the jury,” tbat is by “clear and convincing” evidence tbat they should answer the issue “No,” was sufficient.

In Mendenhall v. Davis, 72 N. C., 150, it was held tbat parol evidence was admissible to show tbat an endorsement in blank was made with tbe understanding tbat it was to pass tbe title and without any assumption of liability. In Comrs. v. Wasson, 82 N. C., 308, it was held tbat an endorsement could be construed as simply passing tbe title. Tbe plaintiffs contention, however, does not seem to controvert tbat proposition but rests upon tbe ground tbat tbe charge “Has be satisfied you by tbe evidence, clear and convincing” was not sufficient, but was defective because of tbe omission of tbe further word “strong” or “cogent.”

In S. v. Arnold, 107 N. C., 862, in discussing tbe words for which no synonyms can be substituted in indictments, it was held tbat while “feloniously,” “with malice aforethought,” and “murder” are essential *347to tbe validity of tbe indictments requiring them, tbat there were no other “sacramental words,” tbat is, words which admitted of no substitute and especially that “wilfully and unlawfully” could' be expressed by other words conveying the same idea.

The entire controversy depended solely upon the question whether the words “without recourse” were omitted by mutual mistake. On this there was a direct conflict of evidence and when the jury were told to find the issue in the negative unless they were satisfied by clear and convincing proof, they must have understood this required proof that was strong and cogent. While it is best always to follow the customary expressions and terms, if for no other reason because it will avoid such debates as this and will prevent experiments in language — whether in civil or criminal cases — we do not see that the expression “clear and convincing proof” which would satisfy the jury, wras not sufficient to convey to their minds the same idea that would have been conveyed if the additional word “strong” or “cogent” had been used.

It is more probable that the testimony of defendant that the plaintiff asked $2,500 for the house (and the plaintiff admitted it was $2,750) was clear and convincing to the jury that $3,000 in bonds, with the interest thereon, was agreed upon because not endorsed.

We have held frequently and consistently that the charge of the court should be construed in its entirety and not by any detached portions.

Taking the evidence of the defendant, Fox, and that of the plaintiff, together with the charge of the court, we think that the controverted point together with the necessary intensity of proof required, must have been fully understood by the jury and that they found the issue intelligently and understandingly and we cannot on appeal disturb the verdict merely because the word “strong” (or “cogent”) was not added to the phrase that the proof must be “clear and convincing.”

No error.

dissented upon the ground: 1. That there is no evidence of a mutual mistake, or any mistake, as understood in the law, by L. G. Fox, and certainly none by W. P. McRae, and therefore there was no mutual mistake, and the court should have granted the motion to nonsuit.

L. G. Fox signed the very endorsement he intended to sign, and did so not mistakenly, in the sense of a mistake in fact, but because he thought that, as T. T. Cole had the words “without recourse” in his endorsement, it would import the same words into his own endorsement. But in this he was mistaken, not in fact, but only in law, and that will *348not do; because, for one good reason, W. P. McRae did not participate even in that mistake. What L. Gr. Fox needed was a lawyer, when he would have had better advice than his own. Whoever has himself for his lawyer, is apt to have an unwise man for his client, is the old, old adage.

2. The charge of the court, based upon the defective evidence, was also erroneous, and necessarily so.

3. It is well settled that there must be a mutual mistake of the parties or the mistake of one induced by the fraud, surprise, etc., of the .other, which is not alleged here. White v. R. R., 110 N. C., 456; Day v. Day, 84 N. C., 408; Jones v. Warren, 134 N. C., 390; McMinn v. Patton, 92 N. C., 371, 374; Wilson v. Land Co., 77 N. C., 445; Britton v. Ins. Co., 165 N. C., 149, and more recently, Ray v. Patterson, 170 N. C., 226; Newton v. Clark, 174 N. C., 393. Where mistake alone is relied on, it must be both alleged and shown that it was a mutual one, and that the matter asked now to be supplied, or inserted, was omitted by reason of a mutual mistake. Ray v. Patterson, supra; Newton v. Clark, supra.