Maxwell v. . McIver

MacRae, J.: The pleadings disclose that an issue of fraud was raised, which ought to have been presented to the jury; *291 but it does not appear that any such issue was tendered by defendant’s counsel, and no exception was taken to the issues submitted. In Kidder v. McIlhenny, 81 N. C., 123, it was insisted by the defendant that the issues passed on did not dispose of the matters in controversy in the pleadings, and that there should have been, and should now be, a further issue passed on, involving the validity of the mortgage as against the feme defendant, and the objection is thus disposed of in the opinion of the Court: “Nor ought the defendants to have been content with the proposed issue, if they desired others. They should have asked for other issues, and, if necessary, they would have been allowed; or, if not allowed, the refusal would have constituted matter of exception. It might produce serious inconveniences and delays, if, when a party has opportunity to propose other and further issues and he refuses or fails to do so, he could then be heard to complain of the consequences of his own neglect, and thereby increase the costs, as well as delay the determination of the cause.” McDonald v. Carson, 95 N. C., 377. It is to be regretted that further issues were not tendered, for, by reason of this failure, the defendant seems to be cut off from his most vital defence. Walker v. Scott, 106 N. C., 56. The issues submitted without objection were: (1) “What payments have been made on the note sued on?” (2) “Is the plaintiff G. N. Maxwell indebted to defendant by way of counterclaim; and if so, in what sum?” Upon these issues the testimony offered and rejected and made the subject of exception was irrelevant. It might have been very material if other issues had been submitted, but as defendant made no tender of others, nor exception to those submitted, we are unable to afford him any relief. The motion to be permitted to amend his answer and set up a plea of usury was denied, and to this the defendant excepted. The allowance of the amendment was within the discretion of the presiding Judge, and is not subject to review. No Error.