Barefoot v. . Lee , 168 N.C. 89 ( 1914 )

This action was brought to recover $772.54, double the amount of excessive and unlawful interest alleged to have been paid to defendant, as usury, upon an indebtedness of the former to the latter, evidenced by a note and mortgage to secure the same. The note was given for $1,528.25, whereas plaintiffs allege that they received on the loan only $1,223.48. The transaction was conducted through W. A. Stewart as attorney for the plaintiff. He received the $1,528.25 from defendant, paid off a debt due by plaintiff to J. C. Layton amounting to $1,223.48, and it did not appear what disposition was made of the balance. The case substantially turned upon the authority of W. A. Stewart to represent the plaintiffs and bind them by his acts. It is stated in the record that plaintiffs admitted that Mr. Stewart was their attorney. Plaintiffs denied on the argument before us that this was true, but we must accept the statement of the judge on this point, nothing else appearing. We cannot settle this controversy upon their bare denial. Upon the admission, the charge of the court was clearly right, that defendant's liability, or plaintiff's right to recover, depended not upon the amount due to Layton, but upon that received by W. A. Stewart from defendant for and in behalf of the plaintiffs. It was the actual amount loaned, regardless of the amount received by them. They must settle the difference with their attorney, who it seems had a claim against them for professional services rendered in this and perhaps other transactions. Besides, the exceptions of plaintiffs to the charge of the court were not specific enough. It was directed against three distinct instructions, separately numbered, one of which, at least, was correct in law. It must, therefore, fail. Lumber Co. v. Moffitt, 157 N.C. 568; Gwaltney v. AssuranceSociety, 132 N.C. 925.

If the plaintiffs wished to challenge the correctness of the statement that they had made the admission as to Mr. Stewart's attorneyship, they should have called it to the attention of the court at the proper time. It is too late, after verdict, to avail themselves of its incorrectness, as a matter of right. Phifer v. Comrs., 157 N.C. 150; Jeffress v. R. R.,158 N.C. 215. The judge would probably have set aside the verdict, in the exercise of his discretion, if he had found that he had inadvertently misrepresented the fact.

The issues submitted by the court to the jury were sufficient to decide all controverted questions, and gave each of the parties a fair and full opportunity to present his case in every aspect of it. When this is the case, there is no error in rejecting other issues tendered, which would manifestly be superfluous and often produce confusion. Clark v. Guano Co., 144 N.C. 64; Roberts v. Baldwin, 155 N.C. 276; Williams v. R. R.,155 N.C. 260; Garrison v. Williams, 159 N.C. 426.

The statement of the judge that a woman was entitled to no (91) more credit than a man was obviously correct. Her credibility must be determined by her intelligence, character, demeanor on the stand, knowledge of the facts, and other circumstances, and not by her sex.

The other exceptions are without merit.

No error.

Cited: Hardware Co. v. Buggy Co., 170 N.C. 301; Harris v. R. R.,173 N.C. 112; S. v. Love, 187 N.C. 39; S. v. Steele, 190 N.C. 510; Rawls v.Lupton, 193 N.C. 430; S. v. Parker, 198 N.C. 634.