Bond v. Wilson.

42 S.E. 956, 131 N.C. 505, 1902 N.C. LEXIS 324

• Court: Supreme Court of North Carolina
• Decided: December 16, 1902
• Status: Published

Opinions

The defendant claimed several credits on account of payments made by him upon the notes sued on but which were not endorsed upon the notes themselves. One was for the amount of $800, which the defendant averred he had paid for a mill wheel at the request of the agent of the plaintiffs; and another was for the payment of $240 freight bill on the wheel. When the jury brought in the verdict and it was read by direction of the court it was seen that, while the jury had allowed the two credits, they had omitted to mention the dates the credits should bear. Whereupon his Honor directed the jury to retire and state in writing the date upon which the payment of the thousand and forty dollars for the mill wheel and freight should be entered. They returned with their verdict, finding the credit as of 1 January, 1876. The plaintiff excepted to the direction of the court requiring the jury to amend their verdict, insisting that "the verdict as at first rendered was, in contemplation of law, a finding by the jury that the said $1,040 should be credited as of the first day of the term; that instead of that the court interfered with the province of the jury and the rights of the parties in violation of the law in directing a finding of a specific time for entering said credit." We are unable to see any just ground for complaint on the part of the plaintiff in the particular mentioned. It was an imperfect verdict as at first rendered, but the finding of the date of the payment made it complete, and in no sense was it contradictory. It was the proper thing to have done, as well as the just thing, if the verdict was right in the first instance. (507) Juries are constituted for the very purpose of finding the material facts in a case, and when the court discovers a failure on their part to find all of the material facts it can direct the jury to retire and amend the verdict. In Wright v. Hemphill, 81 N.C. 33, the jury returned their verdict to the clerk and had separated for the night, and upon his Honor coming upon the bench in the morning he ordered them to retire and complete their verdict. That was an action for the recovery of personal property, and the verdict as handed to the clerk fixed the property in the defendant, but there was an omission to find the value of the property and assess the damages for detention. There the Court said: "It is always proper for the judge, when the jury return their verdict in open court, to see that it is responsive to every material issue of fact submitted to them, and if it be not so, to refuse to receive it, and direct a jury to retire and make up and bring in a complete verdict." InWilloughby v. Threadgill, 72 N.C. 438, the jury returned a verdict to the clerk at dinner recess in favor of the plaintiff for a sum certain, withoutinterest. When his Honor resumed his sitting the verdict as rendered and entered by the clerk was brought to his attention, and the jury being in the courtroom, his Honor directed them to take their places, and, after instructing them in the law as to the rule of interest, asked them to retire and to amend their verdict according to his instructions. That course was approved by this Court. Of course, as was said that case, such a course would not be admissible in criminal actions. The other exceptions are without merit.

No error.

CLARK, J., did not sit on the hearing of this appeal.

DEFENDANT'S APPEAL IN SAME CASE. (508)