Stern Fish Co. v. Snowden

63 S.E.2d 557 (1951)

233 N.C. 269

STERN FISH CO. v. SNOWDEN.

No. 19.

Supreme Court of North Carolina.

February 28, 1951.

*558 Wilson & Wilson, Elizabeth City, for plaintiff, appellee.

McMullan & Aydlett, Elizabeth City, for defendant, appellant.

STACY, Chief Justice.

The following excerpt from the charge forms the basis of one of defendant's exceptive assignments of error and appears too wide of the mark to be sustained under any rule of interpretation or construction: "Gentlemen of the Jury, now each one cannot be indebted to the other, to the extent of your answering both of these issues in some amount for each of these parties. If you answer the first issue, that is: Is the defendant indebted to the plaintiff as alleged in the complaint, and if so, in what amount? Why then, Gentlemen, the second *559 issue, you'd answer that nothing, because if the defendant is indebted to the Fish Company, then the Fish Company certainly is not indebted to the defendant."

Apparently the court had in mind and intended to say, that in arriving at a proper adjustment of the account between the parties, consisting, as it does, of debits on the one side and credits on the other, there could be but one correct balance, either in favor of the plaintiff or the defendant, but not in favor of both. Unfortunately, however, the action is not for an account stated, Hawkins v. Long, 74 N. C. 781, but to recover an advanced deposit, with a counterclaim interposed by the defendant on open account, and the court's language is hardly susceptible of this single interpretation, if really capable of such construction at all. The defendant may have intended to make his counterclaim an account stated in the statement rendered 4 May, 1948, but he omits so to allege or to testify. Copland v. American De Forest Wireless Telegraph Co., 136 N.C. 11, 48 S.E. 501; 1 Am.Jur. 272. The jury is told in so many words that if they answer the first issue in any amount, their answer to the second issue would be nothing, and conversely by inference, if they answer the second issue in any amount, their answer to the first issue would be nothing. This left the jury with very little choice, since the defendant had admitted in his answer that he received the $500 advanced by the plaintiff. Indeed, the only controverted issue in the case was that raised by the defendant's counterclaim. If the defendant recover nothing on his counterclaim, the plaintiff would be entitled to judgment on the pleadings for his advanced deposit of $500. In the light of the transcript, the instruction appears misleading, if not confusing.

The chief purposes to be attained or accomplished by the court in its charge to the jury are clarification of the issues, elimination of extraneous matters, and declaration and explanation of the law arising on the evidence in the case. G.S. § 1-180 as rewritten in 1949, S.L. Chap. 107; Irvin v. Southern R. R. Co., 164 N.C. 5, 6, 80 S.E. 78. These are essential in cases requiring the intervention of a jury. As was said in Merrimon, C. J., in State v. Wilson, 104 N.C. 868, 10 S.E. 315, 317, "The jury should see the issues stripped of all redundant and confusing matters, and in as clear a light as practicable", and by Barnhill, J., in State v. Friddle, 223 N.C. 258, 25 S.E.2d 751, 753, "The chief object contemplated in the charge * * * is to explain the law of the case, to point out the essentials to be proved on the one side and on the other, and to bring into view the relation of the particular evidence adduced to the particular issue involved." Accordant: State v. Sutton, 230 N.C. 244, 52 S.E.2d 921; State v. Jackson, 228 N.C. 656, 46 S.E.2d 858; Guyes v. Council, 213 N.C. 654, 197 S.E. 121; State v. Rogers, 93 N.C. 523; State v. Jones, 87 N.C. 547; State v. Matthews, 78 N.C. 523; State v. Dunlop, 65 N.C. 288; Bird v. United States, 180 U.S. 356, 21 S. Ct. 403, 45 L. Ed. 570.

A new trial seems necessary. It is so ordered. New trial.