#### CONTINENTAL JEWELRY COMPANY v. W. M. JONES.

(Filed 16 September, 1914.)

Vendor and Purchaser — Trials—Fraud—Issues of Fact — Evidence—Instructions.

In tbis action to recover tbe price of certain jewelry sold and delivered, fraud in tbe procurement of tbe sale was alleged, and the controversy presented is one of facts, determined by tbe jury in defendant’s • favor, with tbe burden of proof properly placed upon him.

Appeal by plaintiff from Bond, J., at March Term, 1914, of Edge-combe.

*83 J. M. Norfleet for plaintiff.

W. 0. Howard for defendant.

PeR CueiaM.

This action was brought to recover $192, tbe price o£ jewelry sold to defendant, and be admitted liability for tbat amount, according to tbe terms of tbe sale, unless it was found tbat tbe written contract was procured from bim by tbe fraud of tbe plaintiff’s agent, wbo sold tbe goods, or unless tbe goods bad no market value or merchantable quality or did not correspond witb tbe samples by wbicb they were sold. Tbe court placed tbe burden of showing these defensive facts upon tbe defendant, and submitted issues to tbe jury, wbicb witb tbe answers thereto are as follows:

> “1. Did tbe goods delivered to defendant Jones by plaintiff have any merchantable value ? Answer: ‘Yes.’

> “2. Did tbe goods delivered to defendant Jones by plaintiff correspond witb sample by wbicb they were sold ? Answer: No.’

> “3. Was tbe execution of contract referred to procured by fraud, as alleged? Answer: ‘Yes.’”

There was evidence to sustain tbe findings of tbe jury, and tbe request by plaintiff for an instruction, tbat if tbe jury believed tbe evidence they should answer tbe second issue “Yes” and tbe third issue “No,” was properly refused, as was also tbe motion for judgment non obstante vere-dicto. Tbe case involves nothing more than a question of fact, and tbe jury having found tbat tbe contract was obtained by fraud, plaintiff is not entitled to recover. Tbe ease states tbat tbe court fully instructed tbe jury as to tbe contentions of tbe parties and tbe issues, and there was no exception to tbe charge.

No error.