Bowman v. Fidelity Trust & Development Co.

87 S.E. 46, 170 N.C. 301, 1915 N.C. LEXIS 389

Opinion

Hoke, J.

In the charge of his Honor on the first issue, he said, among other things: “The court charges you that if you believe the evidence of Mr. Chadwick, who is an officer of the company, familiar with its affairs, you will answer that issue ‘Yes,’ irrespective of the testimony of the plaintiff, who also says that the contract was breached by the defendant.”

Again, after a very careful statement of. the position of the parties plaintiff and defendant on the other features of the case, he says: “Remember the court charges you if you believe Chadwick’s testimony, you will answer the first issue ‘Yes,’ ” etc. True, this witness, Chadwick, was an officer of defendant company and had testified in its behalf, but, in our opinion, while the permissible, it is not at all the necessary interpretation of the witness’s testimony that there had been a wrongful breach of the contract on the part of the defendant. Some portions of his testimony are capable of the construction that the contract had been surrendered and canceled by mutual consent of the parties, as defendant contended. Apart from this, there were other -witnesses who testified for defendant, and their statements tended to show there had beep no wrongful breach of the contract within the meaning of the issue, and in singling out this witness and making the case depend in this way on his evidence alone, we are of opinion that, under our decisions, the charge, in this respect, should be held reversible error. Cogdell v. R. R., 129 N. C., 398; Long v. Hall, 286-293; Jackson v. Comrs., 76 N. C., 282; Anderson v. Steamboat Co., 64 N. C., 399.

This will be certified, that the cause may be submitted to another jury.

New trial.