Bank v. . Burgwyn , 116 N.C. 122 ( 1895 )

After hearing thorough argument and making a painstaking examination of the pleadings and the testimony, we are unable to discover any material difference in any aspect between the case presented at this term of the Court and the one heard and determined at February Term, 1892, and reported in 110 N.C. 267. The opinion delivered in that case for the Court by Justice Shepherd renders it unnecessary for us to go over the ground again. It is true, however, that when the case was last tried at Vance Superior Court objection was made (for the first time) by the defendant to each and every question in the depositions in the case which went to connect the (124) Southern Electric Light Company with the notes, either as indorser or indorsee. But these depositions had been offered in evidence by the plaintiff on two former trials of this action and no objection was made on said first two trials, and no objection was made and noted at the time said depositions were taken, nor at the time they were opened by the clerk. The court properly overruled the exceptions. Carroll v. Hodges,98 N.C. 418. Also, at the last trial there was suggestion of a variance between the complaint and the evidence. In the two former trials this suggestion was not made, and upon inspection the variance in its nature is immaterial and did not mislead the defendant. Clark's Code, section 269, and cases thereunder cited. Upon a close inspection of the additional testimony for the defendant, introduced on the last trial of the case, we do not find anything that adds in value to the testimony offered in the former trials. The court below charged the jury in these words: "That the defendant having pleaded that the notes sued on were obtained by the fraudulent representations of the payees, and the plaintiff having admitted that allegation, and consented for the second issue to be answered in the affirmative, the burden was on the plaintiff to show that it was a bonafide purchaser for value and without notice of such fraudulent representations. That the plaintiff had offered testimony tending to show that it had acquired the notes bona fide for value, in the usual course of business and while they were still current, and if the jury believed this evidence the prima facie case of the plaintiff was restored, the burden of proof was then upon the defendants to establish knowledge on the part of the plaintiff, at the time of its purchase, of the alleged fraudulent representation, and that the defendants had (125) offered no sufficient evidence for that purpose, and hence if the jury believed the testimony offered by the plaintiff they should answer the first and third issues in the affirmative."

We think that the court took a correct view of the character and weight of the testimony, properly instructed the jury thereupon and applied the law thereto. There is no error and the judgment of the court below is

Affirmed.

Cited: Watkins v. Mfg. Co., 131 N.C. 539; Morgan v. Fraternal Assn.,170 N.C. 81; Steel Co. v. Ford, 173 N.C. 196.

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