Spence v. Clapp , 95 N.C. 545 ( 1886 )

SMITH, C. J.,

(after stating the facts). We are unable to see any just ground for exceptions to the charge as to what constitutes due diligence under the circumstances, and what falls short of it. How more explicit could it be than in the enumeration of the facts testified to, and upon which the measure of defendant’s duty was dependent ? The expression, “ thoroughly canvassed,” in the instructions, comprehends a series of active and energetic efforts to make sale of the hives, and must necessarily be general. It cannot be expected that it should mention them in detail, when the evidence was before the jury, of the acts in which the canvassing consists. The Court does declare the law upon the hypothesis of the acceptance of the facts, in one and another aspect of the evidence, and in our opinion quite as favorably to the plaintiffs as they could ask. It is not always practicable to so separate the facts as to raise a question of law for the Court, for they are often blended, and must be passed on by the jury under appropriate directions of the Court.

Taking the alternative instructions, which upon one statement of the facts, show the exercise of due diligence, and upon the other, want of it, and leaving to the jury to determine what, upon the evidence, were those facts to which the instruction is applicable, the Court has done all required for the rendering of an intelligent verdict.

The second exception to the charge, that the jury did not properly respond to the second part of the instructions, or, in other words, to give due weight to the evidence tending to show the absence of due diligence, is addressed to the discretion of the Judge in an application to set the verdict aside, and cannot be entertained in this Court.

We discover no error in the charge, nor in admitting the contract out of which the defence arises, in evidence. Indeed, this last exception was not urged in the argument, and we suppose was not relied on by the appellants.

The judgment must be affirmed.

No error. Affirmed.