Fortescue v. . Makeley

MekkimoN, J., (after stating the facts as above.) We think that the court ought to have instructed the jury, that there was no evidence to prove that the defendant Fortescue purchased the land in question at the sheriff’s sale, as the agent of and for Mrs. Slade, and paid for the same with money furnished for that purpose by her. It clearly does not appear positively from the evidence, that she requested or instructed him to purchase it, or that he had of her money any considerable part of the sum of money required to pay for it. Nor does it so appear, that he engaged to purchase it for her, or that such relations existed between them as would reasonably imply any, the slightest obligation resting on him to do so. It does not appear, that he was her general agent in any respect, or that he did more than occasional acts of friendly service, while others did like service for her, from time to time. Nor does it appeal-, that he made purchases for her at all — it only appears, that in the spring of 1872, he received of rents due her between $40 and $80, and that she authorized him to receive *60 for her $30, the sui’plus of the purchase money paid for the land, and to execute a receipt therefor. . It is no where intimated in the evidence that Mrs. Slade manifested by word or act, any desire to purchase the land at the sheriff's sale, or that she thought there was any reason why she should do so; nor does the evidence shoAV that she had the money required for that purpose. Indeed, one witness stated that the rents of the land were not sufficient to support her. Nor does the evidence show, that the defendant Fortescue, ever said anything, or did any act, that implied, or tended in itself to prove, that he purchased the land for her, or engaged to do so. The slight facts relied upon by the plaintiffs, as sought to be applied, are vague and uncertain, and certainly do not of themselves imply, or tend reasonably to pi’ove' such agency as that alleged; nor are they such, taken severally or together, as make evidence from which the jury might reasonably infer it; and much less, do they create any presumption of such agency. The facts do not suggest or point to it with any degree of certainty; in their nature, and in the orderly course of things conseauent upon them, it was not in any view of them essential; they did not make it necessary or probable; they barely give rise to vague conjecture. Such facts for such purpose are too uncertain and indefinite to produce conviction upon the mind, or to act upon in the ordinary course of business life; they were calculated to bewilder and mislead the jury in finding the fact sought to be established,'rather than lead them to a rational and just conclusion. Such facts are too slight in their nature and combination for the purpose contemplated to constitute evidence. To make evidence, they should together, and in their bearing each upon the other, tend reasonably to prove the fact to be established; in their nature, they should suggest and point to it with such degree of certainty as to prove it to the satisfaction of the reasonable *61 mind. This, in our judgment, the evidence failed to do. Cobb v. Fogleman, 1 Ired. 440; State v. White, 89 N. C. 462; State v. James, 90 N. C. 702. The agencv of the defendant Fortescue, as alleged by the plaintiffs, w'as treated on the trial as a material and controlling fact. The Court in refusing to tell the jury, as requested by the defendants, that there was no evidence to prove the allegéd agency, and in telling them that if the defendant Fortescue purchased the land as agent of Mrs. Slade, the plaintiffs were entitled to recover, in effect instructed them that there was evidence from which they might find such agency to have existed. In this there was error, for which the defendants are entitled to a venire de novo, and to that end, let this opinion be certified to the Superior Court. It is so ordered.