Smith v. . Fort , 71 N.C. 43 ( 1874 )

Settle, J.

We have frequently had occasion to condemn the practice of sending to this Court a full report of all the evidence adduced upon the trial, but in tire case before us, owing to a disagreement of counsel, his Honor has seen fit to do so. And here, at least, it serves a useful purpose, in that we are enabled to correct an error that does not otherwise appear upon the record.

His Honor left it to the jury to say whether or not there' had beea a sale of the mill and fixtures by the plaintiffs to the' defendant Port, alone, when the written transfer made by the-plaintiffs, without receiving in return any security, money or other compensation, in the absence of the defendant, (whether before or after the burning of the mill does not clearly appear,) shows that the plaintiffs intended that it should appear that they had transferred the' property to Fort and Yelverton jointly.

The evidence for the defendant lends to prove that no contract was executed on Tuesday, but that there was- a conversation about a trade-to be consummated between the plaintiffs on the one side and the defendant and Yelverton on the other, and that there was an understanding between the plaintiff, Ed-mundson, and'the defendant,, that all parties should meet on Saturday, when the price could be ascertained and" the contract executed: The evidence for the plaintiff" tends to prove th'at there was a sale to Fort and Yelverton.

The idea of holding Fort alone responsible seems to have been an afterthought, not supported by the evidence.

His Honor sbouM.- have instructed the jury that there was-no evidence upon which they could find that Fort alone had bought or contracted: to buy the mill. and. fixtures.

There is error,' for which there must be a venire db novo.

Pee CujkiaM. Venire de nova..