McFarland v. . Improvement Co. , 107 N.C. 368 ( 1890 )

The defendant asked several instructions, of which the 9th was as follows:

"9. Every person who professes to be a skilled workman impliedly undertakes to do his work well and in a workman-like manner, and according to the rules and principles of his trade or art. The performance must be an actual bona fide performance, in accordance with the true meaning of the parties, and not a mere compliance with the letter of the agreement, in violation of the spirit of the contract, if such existed. If a contractor knows the purpose for which a work he engages to perform is done, the work must be reasonably fit for the purpose for which it is required."

The court refused all the instructions, except a part of the last, embodied in the charge given, and the defendant excepted.

There was no exception taken to the charge of the court.

Verdict and judgment for plaintiff. Appeal by defendant. Upon the evidence and pleadings, the defendant was entitled to have his ninth prayer for instructions granted, if not in the very words asked, at least in substance. It appears that neither was done. The case, as settled by the judge, says, "All the prayers for instructions were refused, except a part of the ninth, embodied in the charge given, and the defendant excepted." It appears, therefore, that only a part of this prayer was given, and what part is not stated. As the charge is not sent up, we cannot say that the part given was the substance of the whole prayer; and it would seem that it was not, for the judge states, in effect, that part of that prayer (and the whole of the other prayers) was refused. The exception to the refusal to give the whole prayer as asked, was notice to the appellee and to the judge to send up the part of the charge delivered, which embodied the instruction given in that aspect of the case. This has not been done. There is in the record no exception to the charge given, and we must assume that it was satisfactory as far as it went. This exception, however, is for an omission to charge, which would not be error unless an instruction was asked and refused as was done here. S. v. Bailey,100 N.C. 528; McKinnon v. Morrison, 104 N.C. 354.

Error.

Cited: Emry v. R. R., 109 N.C. 602.

(370)