Brown v. . Osteen

Clarkson, J. In Meadows Co. v. Bryan, 195 N. C., at p. 401, the law is stated as follows: “There is no provision in the notes executed by E. W. Bryan and payable to Merrill Bryan, by the terms of which the maturity of the notes, not due according to their tenor, is accelerated upon default in the payment of any one of said notes; the provision for the acceleration of the maturity of said notes is contained in the mortgage, securing the same. This provision is applicable, therefore, only to the foreclosure of such mortgage, under the power of sale, or by civil action.” Walter v. Kilpatrick, 191 N. C., 458. As to the notes or bonds not due when this action was instituted, plaintiff’s attorney frankly admits that the judgment should be modified, and we so hold. The fourth issue is as follows: “Did the defendants, with knowledge of the false and fraudulent representations of the plaintiff, ratify the execution and delivery of the said notes, as alleged in the reply?” The defendants assign error as to the charge of the court below on this issue. We cannot so hold. We have read with care the charge of the court below on this issue, both before and after the jury came into court and requested the court *309 to recharge the law on this particular issue. Taking tbe charge as a, whole and not disconnectedly, we think the court below clearly and fully charged the law as repeatedly set forth in the decisions of this Court. On this issue, after giving the contentions fairly to both sides of the controversy, the court charged, in part: “Now, gentlemen of the jury, our courts have said, as late as the 191st Report, which was issued in the year 1926, and the court charges you that this is the law: ‘In order to rescind, however, the party injured must act promptly and within a reasonable time of the discovery of the fraud, or after he should have discovered the fraud by due diligence, and he is not allowed to rescind in part and affirm in part; he must do one or the other. And as a general rule the injured party is not allowed to rescind where he is not in a position to put the other party in statu quo by restoring the consideration passed. Furthermore, if after discovering the fraud the injured party voluntarily does some act in confirmation (recognition) of the contract, his power to rescind is then a.t an end.’ The court has read to you from the case of McNair v. Finance Co., Book 191, at bottom page 718 of the N. C., Report.” May v. Loomis, 140 N. C., at p. 359. The exceptions and assignments of error are not in accordance with Rawls v. Lupton, 193 N. C., 428, but notwithstanding this, we have considered the material ones. For the reasons given, the judgment of the court below is Modified and affirmed.