Virgin Cotton Mills v. Abernathy

20 S.E. 522, 115 N.C. 402

• Court: Supreme Court of North Carolina
• Decided: September 5, 1894
• Status: Published

Opinion

CLARK, J.:

The first and second exceptions for failure to submit the issue requested, and for issues actually submitted, come too late after verdict. The Code, § 412 (2); Phifer v. Alexander, 97 N. C., 335; Taylor v. Plummer, 105 N. C., 56; Lowe v. Elliott, 107 N. C., 718. The issues are, however, in fact sufficient under the rule approved in Humphrey v. Church, 109 N. C., 132. The “general denial” cured any failure to allege tender of the certificate, as the only reason for requiring a tender before action brought is to throw the costs of an unnecessary action upon the plaintiff. Waddell v. Swann, 91 N. C., 108; Moore v. Garner, 101 N. C., 374. Besides, this is not a purchase from another, but from the company itself, and in effect a subscription to its capital stock. The prayers for instruction, so far as correct and relevant to the case, were given. There was no ground for the motion for judgment non obstante veredicto, which is only granted when the answer confesses a cause of action, and the matter relied on in avoidance is insufficient. Walker v. Scott, 106 N. C., 56. No Error.