White v. . Clark

Dillard, J. In the statement of the case of appeal made out by His Honor in the court below, there is no error pointed out in the reception or rejection of evidence nor in the instructions given or withheld from the jury, and in such case the rule is to affirm the judgment. It was the duty of the appellant to see that the case made out by the judge fully and distinctly sets forth his exceptions and the grounds thereof. Utley v. Foy, 70 N. C., 303; Swepson v. Summey, 74 N. C., 551; Sampson v. R. R. Co., 70 N. C., 404. The appellant, admitting the rule, insists, however, that although there is no special assignment of error in the case of appeal, yet His Honor undertook to charge the law per *9 taining to the controversy and therein committed an error apparent on the record to his detriment, and that it is competent to him on the trial here to assign his error ore terms and have this court to consider and pass on it. We do not assent to this mode of assigning errors as admissible under the established rules of practice of this court, but in this case as we have a definite opinion on the point made we will go on and express it. In the absence of any special requests, His Honor, in his general charge to the jury, instructed them, “that they must be satisfied from the evidence that the articles charged in the account were purchased by and delivered to David Clark, or that he ratified and confirmed the action of J. J. Judge and promised the plaintiff to pay for them ; that they could not give a verdict against the defendant for any of the articles furnished to Walter Clark or any other person except the defendant. That if upon the testimony they should believe that the articles charged in the account, or any of them, were not furnished to said Clark, and he had not promised to pay the plaintiff for them, they should not render a verdict for the plaintiff for such articles.” These instructions of His Honor are claimed to be erroneous, in that His Honor omitted to call the attention of the jury to the distinction in law between the obligation of a parol promise to pay one’s owm debt and the parol promise to pay the debt of another, and to charge them in relation thereto. To determine the question of alleged error, the charge of His Honor must be considered in reference to the controversy before the jury and the exact points in dispute upon the evidence adduced. The goods, for whose value recovery is sought, were furnished on the orders of Judge, an overseer of defendant and also of Walter Clark, on their two adjacent plantations, and were furnished on orders signed by the overseer “as agent of Walter Clark,” and charged on the books of plaintiff to Walter Clark. On the trial in the *10 superior court, the fact of the furnishing the goods was not disputed, but the inquiry was, for whom and for whose use were they furnished, for David Clark or for Walter Clark. And as pertinent to this point, evidence was introduced by the plaintiff tending to show the purchase to have been made for David Clark and an admission thereof, and a promise by him to pay for the same; and on the part of the defendant, evidence was offered and received tending to show a want of authority in the overseer to buy articles for either David Clark or Walter Clark, and tending to show also'that some of the items in the account were for articles bought for Walter Clark. Interpreting the judge’s charge with reference to such state of the controversy as shown forth in the contentions before the jury, it clearly appears that His Honor in his instructions sought to have the jury classify the items in the account, separating those bought for David Clark from those bought for Walter Clark, and for this purpose, as it seems to us, the terms of the directions given were reasonably intelligible and definite, and not such as to mislead the jury or to admit of any wrong action in the making up of the verdict. His Honor’s charge in substance was, that whatever articles had been bought for the defendant and he had promised to pay for he was liable for; and that the jury might find a verdict against him to that extent. And that if they should find that the articles or any of them were not bought for David Clark and he had not promised to pay for them, they should not find a verdict against defendant for such articles. To make the meaning of the intention clear, and so guard against any misunderstanding of the jury, His Honor added that the jury could not give a verdict against the defendant for any of the articles furnished to Walter Clark or to any other person except the defendant. Under these directions the jury were surely guided to make a separation between the purchases for David Clark *11 and those for Walter Clark, and definitely directed not to find against the defendant any article that was bought for Walter Clark or any other person. If.the defendant desired any moré definite or particular instruction on the distinction between the obligation of parol promises for one’s own debt, and parol promises to pay the debt of another, he should have made the request, but he did not. In fact, the charge as given as much protected the defendant against liability for the items furnished to Walter Clark as if the distinction between the two kinds of promises had been called to the attention of the jury, and instruction given in relation thereto with the greatest technical precision. It is the duty of the appellant on his appeal to point out and maintain some error of law to his injury, and nonesuch being made to appear, the rule is that all uncertainties and omissions are to be taken most strongly against him. Utley v. Foy, 70 N. C., 303; Rush v. Steamboat Co., 67 N. C., 47. No error. Affirmed.