Wilson v. Holley

66 N.C. 408

• Court: Supreme Court of North Carolina
• Decided: January 15, 1872
• Status: Published

Opinion

Reads, J.

‘ 1. We see no force in the objection of defendant to the admission of evidence to show, that at the time of the sale he represented to the plaintiff that all the seine *fec., sold was at the Eaton House Fishery. It was evidence to show that was the understanding of the parties, that the plaintiff was to receive the articles at that place, and to show tb'e obligation on the part of the defendant, to deliver them at that place, if he had them in his possession at another place.

2. The defendant w&.s not entitled to the instruction prayed for, “that the plaintiff was not entitled to recover for any fraud or fraudulent representation of the defendant,” for the reason that there was no claim or demand on the part of the plaintiff, to recover upon such grounds, but only for the value of the seine, &c.

3.- The defendant was not entitled to the instruction prayed for, “that if he, the defendant, had the seine, &c., from the Eaton House Fishery, before the sale to plaintiff, and has on hand the same subject to plaintiff’s demand, the plaintiff is not entitled to recover.” Because such instruction would have negatived the idea, that the defendant had represented the goods to be at the Eaton House Fishery, and that it was his duty to deliver them there, and would have assumed the fact, which does not appear, that the defendant had disclosed to the plaintiff that the goods were not at the Eaton House Fishery, but were in the defendant’s possession subject to the plaintiff’s order.

The defendant’s exceptions to the evidence being without force, and not being entitled to the instructions which he pray - ed for and the instructions given, appearing to us to have left the case fairly with the jury.

There is no error. •

Pbk Curiam. Judgment affirmed