{
  "id": 8652949,
  "name": "JAMES O. SUTTON v. JOHN R. PHILLIPS",
  "name_abbreviation": "Sutton v. Phillips",
  "decision_date": "1895-09",
  "docket_number": "",
  "first_page": "228",
  "last_page": "231",
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      "cite": "117 N.C. 228"
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    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
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    "name": "N.C."
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      "cite": "116 N. C., 430",
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      "cite": "80 N. C., 472",
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      "cite": "116 N. C., 502",
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  "last_updated": "2023-07-14T17:25:58.395701+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "JAMES O. SUTTON v. JOHN R. PHILLIPS."
    ],
    "opinions": [
      {
        "text": "Clark, J.:\nPetition to rehear this c.ase, reported in 116 N. C., 502. The rehearing is restricted to the following point, which is stated on page 510 : \u201cThe jury find in response to the first issue that the defendant sold meat to the plaintiff by \u2018weights which had not been examined and adjusted by the standard keeper as required by the statute.\u2019 These words \u2018as required by the statute\u2019 in the verdict have the same reference to the amended Section 3841 as the word \u2018aforesaid\u2019 in the statute, and can only mean that the defendant, not having complied\u2018as required\u2019 with the duty of \u2018allowing and permitting\u2019 his weights and measures to be sealed and stamped, did sell meat by them.\u201d In the case settled on appeal for this Court signed by counsel the following appears : \u201cIt was admitted when motion was made for judgment that the defendant had not been called on by the standard-keeper for the purpose of sealing and stamping his weights and measures.\u201d\nIt is settled by numerous cases that if there is a discrepancy between the case on appeal and the record, the latter governs. State v. Keeter, 80 N. C., 472; Adrian v. Shaw, 84, N. C., 832, and other cases cited in Clark\u2019s Code (2nd. Ed.) p. 579. If, therefore, the verdict had found explicitly any fact, and in the case on appeal (whether signed by counsel or settled by the Judge) an admission to the contrary of the verdict were set out as having been made during the trial, the record of the verdict would govern. But here the verdict is susceptible of different meanings and the admission set out as having been made by.plaintiff or his counsel on the argument for the motion for a new trial, is not contradictory to the verdict, but explanatory of the true meaning thereof, and was in open court, with the evidence fresh in mind. On the rehearing here, counsel for plaintiff did not contest the correctness of this view of the verdict and of his having made the admission thereof.\nThis rehearing does not call in question so much of the former opinion as passed upon the constitutional question involved, which, besides, was cited and approved in Burwell v. Hughes, 116 N. C., 430, 437.\nPetition Allowed.",
        "type": "majority",
        "author": "Clark, J.:"
      }
    ],
    "attorneys": [
      "Messrs. B. 0. Burton and B. M. Gatling, for petitioner.",
      "Mr. JN. J. Bouse, contra."
    ],
    "corrections": "",
    "head_matter": "JAMES O. SUTTON v. JOHN R. PHILLIPS.\nQui Tam AatiorH \u2014 Appeal\u2014Practice\u2014Weights and Measures.\n1. In case of a discrepancy between the case on appeal and the record, the latter will govern; but where the verdict set out in the record is susceptible of different meanings and an admission of counsel set out on the case or on the argument is not contradictory but explanatory of the true meaning of the verdict, the latter will be allowed to govern.\n2. The Statute (Section 3811 of The Code) does not make one liable to the penalty therein imposed until after his refusal to allow the standard keeper to seal and stamp the weights.\nPbtitioN to rehear the case between the same parties decided at February Term, 1895, of this Court, and reported in 116 North Carolina Reports, page 502. The petition was as follows:\n\u201cTo the Honorable, the Supreme Oourt of North Carolina:\n\u201cThe petition of John R. Phillips, the defendant herein, respectfully submits that there is error in the judgment and opinion of the court rendered in this action at February Term, 1895, in the following particular:\n\u201cThe court holds that the defendant\u2019s construction of the statute (Gode, Sec. 3842) is correct, and that no penalty is incurred until the standard-keeper has visited the owner of the weights and measures and demanded to try them by the standard, which the owner has refused to permit and allow, but that the finding of the jury in this case conclusively settled the fact that such demand had been made and refused. It is submitted, with great respect, that- this latter ruling is erroneous, for the following reason:\n\u201c1. The finding of the jury is in these words : \u2018Did the defendant sell meat to the plaintiff on the \u2014 day of April, 1893, and on the -- day of May, 1893, and on the - day of June, 1893, by weights that had not been adjusted by the Standard-keeper as required by the statute ? Answer : Yes.\u2019\n\u201cThe defendant moved that \u2018judgment be rendered against the plaintiff for cost, and the action be dismissed as to the defendant \u2014 the defendant contending that the amendment of Section 3841 -by the Acts of 1893, chapter 100, repealed the penalty in Section 3842, except in case he was called on by the Standard-keeper, and refused to allow and permit him to adjust the scales. It is admitted the defendant had not been called on by the Standard-keeper for that purpose.\u2019\n\u201cIt appears by the case stated that this admission was made in the midst of the motion for judgment, as appears by the foregoing and by the subsequent statement- in the said case. It is submitted that this special fact modifies and controls the general language used in the issue.\n\u201c2. That if this be not true, and the admission is deemed repugnant to the finding, no judgment should be rendered against defendant, but a new trial ordered.\n\u201cYour petitioner has secured the judgment complained of.\n\u201c\"Wherefore, he prays that the cause may be reheard, and for such other relief as may be just, and that the collection of said judgment may be restrained until this petition is disposed of.\u201d\nMessrs. B. 0. Burton and B. M. Gatling, for petitioner.\nMr. JN. J. Bouse, contra."
  },
  "file_name": "0228-01",
  "first_page_order": 256,
  "last_page_order": 259
}