Darden v. . Baker

Brogden, J. The defendants allege, “that upon being informed of the payment of said note as aforesaid to the said Gr. Gr. Moore, the payee thereof and attorney of plaintiff, it was the duty of the-plaintiff, if she was the owner and holder of said note and had given the said Moore no authority to collect the same for her, which is denied, to elect whether she would look to the said Moore for the payment of said note, or would continue to assert her said alleged claim against these defendants.” The defendants further allege that the plaintiff, after notice of the collection of said note by said Moore, accepted payments from him on said indebtedness, and that such conduct was a ratification of any unauthorized act of Moore in collecting said note. There was ample evidence to support the allegations of defendants. Plaintiff was asked this question: “The whole truth is, you were looking to Guy Moore for your money?” (A.) “Yes, sir. I knew he had collected it after it was too late. Before then I employed Mr. Denton to collect this money from him. I did not at any time ever demand payment of John Baker or his wife on this paper until this year. I bought them in 1920, and I reckon about the middle of last year when I brought suit was the first time I demanded it. I did not tell Mr. Moore to loan this $1,000. Tt -was my money to start with.” Plaintiff also testified: “I stated to Mr. John Denton that Mr. Guy Moore had collected this money for me, hut did not turn it over to me.” The plaintiff testified further that she employed Mr. Denton to collect-this particular money from Mr. Moore after she had notice that the defendant Baker contended .that he had paid Moore the full amount of the paper, and further that Moore had made certain payments to said attorney, but that plaintiff had credited these payments on some unsecured indebtedness due her by Moore. So that, it appears from the record that there was proper allegation as to ratification of the transaction by the plaintiff and sufficient evidence to be submitted to the jury upon that phase of the ease. .An examination of the charge of the court discloses that this phase of the case and the legal effect of plaintiff’s conduct after notice of the unauthorized act of Moore was not submitted to the jury either by stating such contention or by positive instruction. While no issue was sub *389 mitted by tbe defendant and no special instruction requested, still it was tbe duty of tbe judge under O. S., 564, to “state in a plain and correct manner tbe evidence given in tbe case and declare and explain tbe law arising thereon.” We are of tbe opinion that tbe charge of tbe court does not comply with tbe law in tbe particular mentioned. In Nichols v. Fibre Co., 190 N. C., 1, Connor, J., said: “While counsel may argue tbe law of tbe case to tbe jury, both plaintiff and defendant are entitled, as a matter of right, to have tbe judge declare and explain tbe law arising on tbe evidence. A failure to comply with tbe statute must be held as error. Tbe error was not waived, in this case by failure of defendant to request special instructions.” Furst v. Merritt, 190 N. C., 397; S. v. Melton, 187 N. C., 481; Bowen v. Schnibben, 184 N. C., 248; Hauser v. Furniture Co., 174 N. C., 463; Worthington v. Jolly, 174 N. C., 266. Upon tbe whole record, therefore, we bold that a new trial should be awarded. New trial.