#### J. D. SHEPHERD and W. D. COPE v. THE W. T. MASON LUMBER COMPANY.

(Filed 30 May, 1914.)

Appeal and Error — Trials—Evidence Prejudicial — Fraud.

In an action brought by individuals against a lumber corporation to recover damages for fraudulent, representations as to tbe quantity and quality of timber owned by the defendant and purchased by the plaintiffs in certain localities^ it is reversible error on the defendant’s appeal for the court to admit evidence of a separate and different transaction whereby the plaintiffs had mortgaged their homes to the defendant, and had lost them under foreclosure of the mortgage; for such evidence could only be used for the purpose of unduly influencing the jury against the defendant in determining the issues of fraud, and would likely have that result. Jones v. Pullen, 115 N. C., 465, and that line of cases, cited and distinguished.

*131' Appeal by. defendant from Ferguson, J.,. at- October Term, 1913, of SwaiN.

Tbis action was brought to recover damages for the false and fraudulent representations of defendant as to the quantity and quality of felled timber on the waters of Bunches Creek, and on the yard situated on Mingo Creek, the amount, of timber on Bunches Creek having been represented to be 2,000,000 feet, and that on Mingo Creek, in the yard, as 500,000 feet. Issues were submitted to the jury, and the following verdict rendered:

1. Did the defendant, W. T. Mason Lumber Company, through its legally authorized agent, falsely represent to the plaintiff the quantity and quality of felled timber on the waters of Bunches Creek, referred to in the contract of 14 October, 1911 ? Answer :• Yes.

2. Were such representations, if made, known to the defendant, at the time said contract was entered into, to be false, or were they made without the knowledge of the truth, as a positive assertion? Answer: Yes.

3. Were such false representations, if any, made with the intent to deceive the plaintiffs to their injury? Answer: Yes.

4. Were the plaintiffs induced to enter into said contract solely because of said representations? Answer: Yes.

5. Did the plaintiffs have ample opportunity, prior to the entering into said contract, to have examined the quantity and quality of said timber? Answer: No.

6. Were they, by any trick or artifice on the part of the defendant, prevented or kept from making such examination? Answer: Yes.

7. What damage, if any, have the plaintiffs sustained by reason of such representations? Answer: $700.

8. Did the defendant, W. T. Mason Lumber Company, through its legally authorized agent, falsely represent to the plaintiff the quantity and quality of the logs to be sawed into lumber on the yard on Mingo Creek, as alleged in the complaint? Answer: Yes.

9. Were such representations, if made, known to the defendant to be false at the time they were made? Answer: Yes.

*13210. Were such false representations, if any, made with tbe intention, on tbe part of tbe defendant to deceive tbe plaintiffs to their injury ? Answer: Yes.

11. Were tbe plaintiffs induced to enter into tbe agreement to saw said logs on Mingo Creek solely by reason of said representations ? Answer: Yes. °

12. Did tbe plaintiffs bave ample opportunity, prior to entering into said agreement and prior to moving tbeir mill to Mingo Creek, to bave examined tbe quantity and quality of logs' and tbe character of roads leading thereto ? Answer: No.

13. Were tbe plaintiffs, by any trick of artifice on part of defendant, prevented or kept from making such examination? Answer: Yes.

14. What damage, if any, are tbe plaintiffs entitled to recover on account of false representations as to quantity of logs on Mingo Creek ? Answer: $800.

15. Did tbe plaintiffs wrongfully abandon the performance on tbeir part of tbe contract of 14 October, 1911, and fail and refuse to perform tbe same? ' Answer: No.

16. If so, what damages has tbe defendant sustained on account of said abandonment of said contract? Answer: None.

Judgment was entered thereon, and defendant appealed.

No counsel for plaintiff.

Zehulon Weaver and Frye, Gantt & Frye for defendant.

Walxer, J.,

after stating tbe casé: There was much evidence taken as to tbe false representation, but we do not deem it necessary to consider tbe exceptions to it or to tbe charge, as we think error ivas committed in tbe admission of certain testimony. Tbe plaintiffs’ witness, W. D. Cope, was permitted to testify, after objection by tbe defendant, that tbe plaintiffs bad given a deed of trust on tbeir borne place to tbe defendant to secure a loan of $500. We bave examined tbe case critically with a view of ascertaining what possible relevancy this testimony bad to tbe matter in dispute, and find it has none; yet it was admitted and allowed to be used before tbe jury as a material fact in tbe case. It is readily seen bow it was prejudicial to tbe defendant, *133if we consider tbe nature of tbe case, and of tbe other testimony, tbe direct question involved, and bow little would be required to turn tbe scales against tbe defendant. Tbe minds of tbe jurors should not be diverted from tbe precise questions in issue by tbe introduction into tbe case of collateral and irrelevant matters, especially such as are calculated to prejudice one of tbe parties and prevent a fair and impartial trial; and especially is this so where, as in this case, tbe defendant is charged with tbe commission of a fraud. It was competent for plaintiffs to show what their damages were and what outlay they bad made in consequence of tbe fraud, if any was practiced; but it was not relevant to this controversy that they should be allowed to inquire as to tbe kind of mortgage they'bad made to tbe.defendants for the purpose of borrowing money, with tbe view of showing that it rested upon their home place, and thus appeal to tbe sympathy of tbe jury’. Tbe evidence was improper and should have been excluded.

Tbe case is not like that of Lea v. Pearce, 68 N. C., 76; Whitehead v. Hellen, 76 N. C., 99; McLeod v. Bullard, 84 N. C., 516; Jones v. Pullen, 115 N. C., 465, and others of a like kind, where as between trustor and trustee, mortgagor and mortgagee, and persons occupying other fiduciary relations towards each other, tbe law raises a presumption of fraud or undue influence because of tbe power and influence which tbe one is supposed to have over tbe other, and requires tbe former to rebut tbe presumption and show tbe fairness and good faith of tbe transaction, and that tbe result was attained without tbe use of any such power or influence. In'those cases tbe mortgagee bad dealt directly with tbe mortgagor in purchasing tbe equity of redemption. But not so here, for there was no dealing between these parties with reference to tbe purchase of tbe plaintiffs’ home, which bad been mortgaged by the defendant. Tbe evidence had no bearing on tbe issues, and could not have been used, and we must assume that it was used, as that was its only use, to weaken tbe defendant in answering tbe charge of fraud in regard to tbe sale of tbe timber. “Where tbe inadvertent effect of receiving immaterial evidence has been to injure a party by *134exciting sympathy for his adversary, or hostility to himself, or in any other way, its admission constitutes reversible error.” 16 Cyc., 1115. As said in Denning v. Gainey, 95 N. C., 532, there was no legitimate use to be made of the proposed inquiry, and it was calculated to prejudice the minds'of the jury, and its exclusion was proper. Where this was the case, a similar question, and having the same general. bearing, was asked in Hutchins v. Hutchins, 98 N. Y., 56, where the Court said: “Illegal evidence that would have'a tendency to excite the passions, arouse the prejudices, awaken the sympathies, warp or influence the judgment of the jurors in any degree, cannot be ,considered as harmless.” Citing Anderson v. R. R., 54 N. Y., 334, and quoting from Judge Lamed’s opinion in the court below as follows: “Nothing could be better fitted to divert the minds of the jury from the true issue than a pathetic contrast between the widow of a rich brother and the poor defendant.” And the same may be said of this evidence, which was “fitted” to present just such a situation: the poverty of plaintiffs, who had lost their home by the mortgage, and the wealth of the defendant, who owned broad acres of timber land.

This error entitles the defendant to another jury.

New trial.