Kingsbury v. . Gooch , 64 N.C. 528 ( 1870 )

The plaintiff declared upon a bond for the payment of two thousand two hundred dollars, dated July 28, 1862, with certain credits endorsed. The defendant pleaded, General issue, Payment and set off, Tender and refusal, Illegal consideration. The first plea was waived so far as it denied the execution of the bond.

It was shown that the consideration of the bond, was Confederate Treasury Notes, borrowed, as the plaintiff knew, for the purpose of enabling the defendant to put a substitute into the Confederate Army. There was also evidence that the defendant, (529) on the 18th of July 1863, had tendered to the plaintiff the whole of the amount then due, in Confederate money, and that the plaintiff had refused it.

His Honor intimated that the tender would not defeat the action, and instructed the jury that if the plaintiff knew for what the money had been borrowed, he could not recover.

The jury returned a verdict, — that they found all the issues in favor of the defendant. The Court enquired if they found all the issues in favor of the defendants. The jury remained silent, and the Court instructed the clerk to record the verdict as above. The defendant excepted, and submitted that the verdict was erroneous, inasmuch as the only issues submitted, were, Tender and refusal, and Illegal consideration, and that the jury meant to find only upon the latter. He thereupon moved for a new trial, for this reason; and also because, if the verdict were upon all the issues, it was against the evidence upon all but the last.

Motion overruled; Judgment, and Appeal by the plaintiff. The plaintiff cannot enforce the contract sued on, as he loaned the money to the principal obligor, with a knowledge that it was to be used for the illegal purpose of hiring a substitute, to be placed in the Confederate Army: Critcher v. Holloway, ante 526. The plea of the general issue was waived on the trial, and the general verdict, although informal, is not erroneous. If the counsel of the plaintiff deemed it important to ascertain upon what particular point the jury found their verdict, he ought to have requested his Honor to put such question to them before the verdict was rendered: 3 Chit. Pr. 921.

There was no error, and the judgment must be affirmed.

(530)

JUSTICES READE and RODMAN dissented.

Per curiam.

Judgment affirmed.

Cited: Kingsbury v. Fleming, 66 N.C. 525; Kingsbury v. Suit, 66 N.C. 603;Logan v. Plummer, 70 N.C. 393.