{ "id": 8656053, "name": "W. P. McRAE v. L. G. FOX et al.", "name_abbreviation": "McRae v. Fox", "decision_date": "1923-04-25", "docket_number": "", "first_page": "343", "last_page": "348", "citations": [ { "type": "official", "cite": "185 N.C. 343" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "82 N. C., 308", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8682883 ], "opinion_index": 0, "case_paths": [ "/nc/82/0308-01" ] }, { "cite": "72 N. C., 150", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8688555 ], "opinion_index": 0, "case_paths": [ "/nc/72/0150-01" ] }, { "cite": "107 N. C., 862", "category": "reporters:state", "reporter": "N.C.", "weight": 2, "opinion_index": 0 }, { "cite": "174 N. C., 393", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11254060 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nc/174/0393-01" ] }, { "cite": "170 N. C., 226", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658348 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nc/170/0226-01" ] }, { "cite": "165 N. C., 149", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658003 ], "opinion_index": 1, "case_paths": [ "/nc/165/0149-01" ] }, { "cite": "77 N. C., 445", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8683035 ], "opinion_index": 1, "case_paths": [ "/nc/77/0445-01" ] }, { "cite": "92 N. C., 371", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273826 ], "pin_cites": [ { "page": "374" } ], "opinion_index": 1, "case_paths": [ "/nc/92/0371-01" ] }, { "cite": "134 N. C., 390", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273151 ], "opinion_index": 1, "case_paths": [ "/nc/134/0390-01" ] }, { "cite": "84 N. C., 408", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8694973 ], "opinion_index": 1, "case_paths": [ "/nc/84/0408-01" ] }, { "cite": "110 N. C., 456", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273903 ], "opinion_index": 1, "case_paths": [ "/nc/110/0456-01" ] } ], "analysis": { "cardinality": 565, "char_count": 12775, "ocr_confidence": 0.458, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.20764936488575203 }, "sha256": "bfd677402eb3ceeaece75d618d57adb4b2ea411471102c311f8b04ace0019d6e", "simhash": "1:31c8762554decdf6", "word_count": 2290 }, "last_updated": "2023-07-14T20:46:28.944101+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Adams, J., did not sit." ], "parties": [ "W. P. McRAE v. L. G. FOX et al." ], "opinions": [ { "text": "Claeic, C. J.\nThe following issue was submitted to the jury: \u201cDid the defendant, L. Gf. Fox, endorse the bonds declared on, leaving out the words 'without recourse to me\u2019 by mutual mistake between himself and the plaintiff, W. P. McRae, as alleged in his answer?\u201d; to which the jury responded \u201cYes.\u201d Tbe appeal presents two questions for our consideration. Tbe plaintiff assigned as error tbat tbe court overruled tbe motion to nonsuit. Tbe evidence must be taken on sucb motion in tbe light most favorable to the defendant upon whom rested tbe burden -of proving this issue.\nTbe defendant, Fox, testified that after be became the bolder of tbe bonds, the plaintiff began negotiations with him for a certain bouse in tbe town of Rockingham for which McRae asked $2,500; tbat after some conversation about tbe matter, Fox testified tbat be told tbe.plain-tiff, McRae, tbat be bad $3,000 in bonds tbat bad been transferred to him by T. T. Cole and which were secured by mortgage against G. W. Fee on 140 acres of land near Rockingham; tbat be did not know anything about tbe land or its value but tbat be would give McRae the bonds for tbe bouse; tbat McRae insisted tbat Fox buy tbe bouse and give him bis note which Fox did not agree to but that be would give tbe $3,000 in bonds; tbat McRae then suggested tbat Fox endorse them, to which Fox testified tbat be replied tbat if be did this be would be just as liable as if be bad given McRae bis individual note. Fox testified further tbat McRae then asked to take tbe bonds to tbe bank so tbat be might inquire about tbe value of tbe land secured thereby and later brought the bonds back to Fox and told him that be would take them on tbe trade for tbe bouse; tbat Fox bad told him tbat be would not endorse tbe notes but tbat be would trade with him if be would take tbe bonds and relieve him of any further liability thereon, to which Fox said be replied tbat McRae said \u201call right.\u201d He said he got tbe bonds out and looked at them and tbe endorsement thereon was \u201cPay to L. G. Fox without recourse to me. (Signed) T. T. Cole\u201d; and thereupon be signed bis name thinking tbat tbe bonds under tbe agreement between him and McRae was tbat be was assigning them without recourse and be wrote on them simply \u201cPay to W. P. McRae\u201d and signed his name.\nHe further testified tbat when McRae brought tbe bonds back after be bad shown them to the bank, as above stated, he kept them for two or three weeks when McRae having moved tbe bouse over upon Fox\u2019s lot, which was a part of \u00bfheir agreement, be signed bis name on tbe back of tbe bonds and sent them to McRae; tbat McRae asked $2,500 for tbe bouse and tbe agreement was tbat he was to take tbe $3,000 notes without endorsement by Fox for tbe bouse.\nTbe plaintiff, W. P. McRae, testified there was nothing said about tbe notes being endorsed without recourse. There was full testimony by both parties and tbe jury found the issue in favor of Fox.\nWe cannot sustain tbe contention of the plaintiff tbat tbe motion for nonsuit should have been granted. There was very full evidence on botb sides; tbe issue was squarely raised and tbe jury found in favor of tbe defendant.\nTbe plaintiff further contends tbat tbe court did not charge tbat tbe burden was on tbe defendant to prove tbe mutual mistake by evidence tbat was \u201cclear, strong and convincing.\u201d Tbe court charged tbe jury three times upon this proposition. He said tbat \u201cas tbe plaintiff alleges, tbe burden is upon Eox to prove it (the mutual mistake) and show by evidence tbat shall produce satisfaction to tbe mind upon all tbe evidence tbat there was a mutual mistake between Eox and McRae.\u201d Again tbe court charged tbe jury: \u201cHas be satisfied you on tbat so tbat you can say and are satisfied tbat it was a mistake at tbe time \u2014 a mutual mistake between him and McRae; tbat is what be alleges now, and if be has satisfied you of it as tbe face of tbe paper has not those words (without recourse) and be has alleged there was mistake, I stated to you tbat tbe burden was upon him to satisfy you tbat there was a mistake and tbe kind of mistake be alleges there was.\u201d\nAnd again tbe court charged tbe jury: \u201cHas be satisfied you by tbe evidence, clear and convincing, tbat those words should have been there ? If tbe defendant has so satisfied you and this in tbe manner which I have explained to you, your answer to tbe issue should be \u2018Yesd If be has failed to so satisfy you, your answer to this issue should be No.\u2019 \u201d\nIt is true tbat the usual phrase is \u201cclear, strong and convincing\u201d but these exact words are not absolutely indispensable. They are not \u201csacramental words,\u201d S. v. Arnold, 107 N. C., 862, but it is sufficient if the expression used conveyed to the minds of the jury the same meaning. the use of the words here \u201cclear and convincing\u201d together with the twice repeated expression tbat unless the jury was so satisfied \u201cin the manner in which be bad explained to the jury,\u201d tbat is by \u201cclear and convincing\u201d evidence tbat they should answer the issue \u201cNo,\u201d was sufficient.\nIn Mendenhall v. Davis, 72 N. C., 150, it was held tbat parol evidence was admissible to show tbat an endorsement in blank was made with tbe understanding tbat it was to pass tbe title and without any assumption of liability. In Comrs. v. Wasson, 82 N. C., 308, it was held tbat an endorsement could be construed as simply passing tbe title. Tbe plaintiffs contention, however, does not seem to controvert tbat proposition but rests upon tbe ground tbat tbe charge \u201cHas be satisfied you by tbe evidence, clear and convincing\u201d was not sufficient, but was defective because of tbe omission of tbe further word \u201cstrong\u201d or \u201ccogent.\u201d\nIn S. v. Arnold, 107 N. C., 862, in discussing tbe words for which no synonyms can be substituted in indictments, it was held tbat while \u201cfeloniously,\u201d \u201cwith malice aforethought,\u201d and \u201cmurder\u201d are essential to tbe validity of tbe indictments requiring them, tbat there were no other \u201csacramental words,\u201d tbat is, words which admitted of no substitute and especially that \u201cwilfully and unlawfully\u201d could' be expressed by other words conveying the same idea.\nThe entire controversy depended solely upon the question whether the words \u201cwithout recourse\u201d were omitted by mutual mistake. On this there was a direct conflict of evidence and when the jury were told to find the issue in the negative unless they were satisfied by clear and convincing proof, they must have understood this required proof that was strong and cogent. While it is best always to follow the customary expressions and terms, if for no other reason because it will avoid such debates as this and will prevent experiments in language \u2014 whether in civil or criminal cases \u2014 we do not see that the expression \u201cclear and convincing proof\u201d which would satisfy the jury, wras not sufficient to convey to their minds the same idea that would have been conveyed if the additional word \u201cstrong\u201d or \u201ccogent\u201d had been used.\nIt is more probable that the testimony of defendant that the plaintiff asked $2,500 for the house (and the plaintiff admitted it was $2,750) was clear and convincing to the jury that $3,000 in bonds, with the interest thereon, was agreed upon because not endorsed.\nWe have held frequently and consistently that the charge of the court should be construed in its entirety and not by any detached portions.\nTaking the evidence of the defendant, Fox, and that of the plaintiff, together with the charge of the court, we think that the controverted point together with the necessary intensity of proof required, must have been fully understood by the jury and that they found the issue intelligently and understandingly and we cannot on appeal disturb the verdict merely because the word \u201cstrong\u201d (or \u201ccogent\u201d) was not added to the phrase that the proof must be \u201cclear and convincing.\u201d\nNo error.\nAdams, J., did not sit.", "type": "majority", "author": "Claeic, C. J." }, { "text": "Walicee, J.,\ndissented upon the ground: 1. That there is no evidence of a mutual mistake, or any mistake, as understood in the law, by L. G. Fox, and certainly none by W. P. McRae, and therefore there was no mutual mistake, and the court should have granted the motion to nonsuit.\nL. G. Fox signed the very endorsement he intended to sign, and did so not mistakenly, in the sense of a mistake in fact, but because he thought that, as T. T. Cole had the words \u201cwithout recourse\u201d in his endorsement, it would import the same words into his own endorsement. But in this he was mistaken, not in fact, but only in law, and that will not do; because, for one good reason, W. P. McRae did not participate even in that mistake. What L. Gr. Fox needed was a lawyer, when he would have had better advice than his own. Whoever has himself for his lawyer, is apt to have an unwise man for his client, is the old, old adage.\n2. The charge of the court, based upon the defective evidence, was also erroneous, and necessarily so.\n3. It is well settled that there must be a mutual mistake of the parties or the mistake of one induced by the fraud, surprise, etc., of the .other, which is not alleged here. White v. R. R., 110 N. C., 456; Day v. Day, 84 N. C., 408; Jones v. Warren, 134 N. C., 390; McMinn v. Patton, 92 N. C., 371, 374; Wilson v. Land Co., 77 N. C., 445; Britton v. Ins. Co., 165 N. C., 149, and more recently, Ray v. Patterson, 170 N. C., 226; Newton v. Clark, 174 N. C., 393. Where mistake alone is relied on, it must be both alleged and shown that it was a mutual one, and that the matter asked now to be supplied, or inserted, was omitted by reason of a mutual mistake. Ray v. Patterson, supra; Newton v. Clark, supra.", "type": "dissent", "author": "Walicee, J.," } ], "attorneys": [ "J. G. Sedb&rry, McIntyre, Lawrence & Proctor for plaintiff.", "W. Steele Lowdermillc, Bynum & Henry for defendants." ], "corrections": "", "head_matter": "W. P. McRAE v. L. G. FOX et al.\n(Filed 25 April, 1923.)\n1. Evidence \u2014 Defense\u2014Nonsuit\u2014Burden of Proof.\nWhere the plaintiff moves for judgment as of nonsuit upon the defendant\u2019s evidence tending to show that by mutual mistake he had not endorsed the note sued on \u201cwithout recourse,\u201d the burden of this issue is on the defendant, and the evidence should be taken in the light most favorable to him; and the motion will be denied if so construed, there is sufficient evidence to sustain his defense.\n2. Correction of Instruments \u2014 Negotiable Instruments \u2014 Endorsements\u2014 Mutual Mistake.\nIn an action by the holder of a note against an endorser it may be shown by the defendant that the plaintiff had acquired the note upon the distinct agreement that it was to be without recourse on him. and by the mistake of the parties it had been endorsed by him otherwise.\n3. Same \u2014 Instructions\u2014Sufficiency of Proof \u2014 Equity.\nWhere the endorser on a negotiable note defends an action thereon by the holder, on the ground that the latter was to accept the note \u201cwithout recourse,\u201d and by mutual mistake he had otherwise endorsed it by writing his name on the back thereof, and the character of his evidence is fully sufficient to sustain his defense, a charge of the court is not error to the plaintiff\u2019s prejudice, that the burden is on the defendant to show his defense by \u201cclear and convincing proof,\u201d when taken with the other relevant portions of the charge, construed as a whole, his language necessarily implied, and the jury must have so understood, that it required proof that was \u201ccogent\u201d or \u201cstrong,\u201d etc.\nAdams, J., did not sit.\nAppeal by plaintiff from Long, J., November Term, 1922, of RICHMOND.\nOn 12 April, 1920, Gf. W. Lee and wife executed and delivered to Paul R. Yountz two notes aggregating $3,000, and to secure iiayment thereof executed a deed of trust on certain lands in Richmond County. Yountz thereafter endorsed the bonds over to T. T. Cole and Cole endorsed the same \u201cwithout recourse\u201d to the defendant, L. Gf. Fox. In the summer of 1920 negotiations were had between the plaintiff McRae and the defendant Fox which resulted in the sale by McRae to Fox of a house upon a lot in Rockingham, in payment for which Fox endorsed and assigned to the plaintiff, McRae, said bonds.\nDefault having been made in the payment of said bonds, McRae instituted suit against Lee and wife to recover judgment against him as maker thereof and to foreclose the deed of trust to secure the same, and Fox was made a party defendant to enforce his personal liability as endorser. There is no defense by Lee and wife but Fox answered alleging that under the agreement between the parties McRae was to accept an endorsement of said bonds without recourse on defendant, Fox, and that the words \u201cwithout recourse on me\u201d were omitted when Fox endorsed the same, by mutual mistake between the parties.\nThe issue of mutual mistake was the only controversy between the parties and the only issue submitted to the jury. Verdict in favor of defendant; judgment and plaintiff appealed.\nJ. G. Sedb&rry, McIntyre, Lawrence & Proctor for plaintiff.\nW. Steele Lowdermillc, Bynum & Henry for defendants." }, "file_name": "0343-01", "first_page_order": 409, "last_page_order": 414 }