Kelly v. Johnson.

47 S.E. 672, 135 N.C. 650, 1904 N.C. LEXIS 76

• Court: Supreme Court of North Carolina
• Decided: May 31, 1904
• Status: Published

Opinion

Connor, J.

. The issue submitted by his Honor presented the contention to the jury. The first issue tendered by the defendants was defective in that it omitted to direct the inquiries to the alleged mutuality of the mistake. The second issue was directed to matter which was evidentiary. The exception cannot be sustained. The defendant W. J. Johnson was asked, on direct examination, “Who was living on and who was in possession of the land claimed by Martin Williams at the time of the execution of the bond for title ?” This was, upon objection, excluded. We think that the question was competent upon the issue as to the mutual mistake. The defendants say that it was not the intention of either party to the contract to include the one hundred acres; that Martin Williams was in possession and that plaintiff had knowledge of it. This-was a fact which the jury could consider upon the issue. The error, however, seems to have been cured by the answer to the question: “At the time of the execution of the bond who was in possession of the one hundred acres claimed by Martin Williams, and did the plaintiff in this action take the bond for title with notice that the one hundred acres was in possession of another under contract of purchase, and. did tbe plaintiff at that time know that tbe defendant did not intend to convey tbe one hundred acres of land ?” Tbe witness answered that be knew it was sold to Martin Williams and be could not say whether be knew that be did not intend to convey it or not. Tbe witness was asked whether tbe one hundred acres was surveyed and tbe lines marked. Tbe question was excluded, but tbe witness was recalled and testified: “Tbe lines of Martin Williams’ tract were distinctly marked.” This cures the error in excluding tbe question when first asked. The other questions excluded were fully answered at other times during tbe examination of the witnesses. We find no reversible error in this respect. Tbe parties were permitted to put their testimony fairly before tbe jury. Tbe plaintiff denied all knowledge of tbe claim of Williams and tbe jury found in accordance with bis contention.

His Honor instructed tbe jury that any contract to sell or convey lands, or any interest in them, unless some memorandum or note thereof is in writing, is void. That they would not consider tbe contract by parol to Williams. It was void so far as Kelly is concerned. Tbe defendants must establish mistake by clear and convincing proof, by evidence outside tbe bond and inconsistent with it. Tbe mistake must be mutual. It must be a mistake both upon tbe part of Kelly and Johnson and Britton, and they must show it — not Kelly. A parol contract is void. They bad nothing to do with Williams. Tbe defendants’ brief discusses separately six exceptions, three of which are addressed to tbe charge. Tbe record contains no exception to tbe charge, tbe entry being: “The defendants move for a new trial. Motion denied and defendants except. Judgment.” If we should construe this as an exception to tbe charge it will not avail tbe defendants, being what is termed a broadside exception. It is settled that such an exception will not be sustained. The record contains no assignment of error. We have examined the entire record and find no reversible error therein.

No Error.