#### GENERAL MOTORS ACCEPTANCE CORPORATION v. T. T. EDWARDS and MID-SOUTH MOTORS, INC.

(Filed 15 June, 1938.)

1. Infants § 4 — Conflicting evidence as to age lield for jury upon plea of defense of infancy and counterclaim seeking disaffirmance of contract.

This action was instituted for recovery of a truck and judgment for balance due on note given as part of the purchase price. The truck was sold under claim and delivery and the proceeds credited on the note. Defendant purchaser contended he was under age at the time of the sale, and set up the defense of infancy and filed a counterclaim seeking to disaffirm the contract. The purchaser and his mother and father testified to facts tending to establish his minority, and introduced in evidence a *737book and Bible to corroborate them. Plaintiff offered in evidence a signed statement of tbe purchaser made in the prior purchase of another truck, showing the purchaser of age at the time of the prior sale, that the purchaser’s father was present at the time the statement was signed and made no objection, and other corroborating evidence. Held: The conflicting evidence was properly submitted to the jury on the issue of the purchaser’s age at the time of the contract in question, and the jury’s verdict that the purchaser was over 21 years of age at that time is upheld.

2. Trial § 32—

When a requested instruction is modified, and, as given, is' without error, and another requested instruction is given in substance, an exception to the court’s failure to give the requested instructions as written, will not be sustained.

3. Trial § 33—

Inaccuracies in the statement of the contentions of the parties must be brought to the court’s attention in time to afford opportunity for correction in order to be considered on appeal.

4. Evidence § 16: Trial § 29d — Instruction in regard to weight to he given testimony by parties interested in the verdict held without error.

A charge that plaintiff contended that defendant and his witnesses were interested in the outcome of the action, that the quality of their testimony was such that the jury ought not to believe it, and that the jury ought to take the fact of their interest into consideration in weighing their testimony, but that the jury should remember the court’s instruction as to the weight to be given the testimony of interested witnesses, will not be held for error when the court’s prior instruction on the point is without error, the word “quality” in the statement of the contention being used not in the sense of natural superiority but as to the weight to be given to interested witnesses.

5. Trial § 36: Appeal and Error § 43—

An instruction will be construed as a whole, and portions of the charge, even if slightly objectionable when standing alone, will not entitle appellant to a new trial if the charge as a whole is not prejudicial.

6. Trial §§ 29d, 33 — Contention that jury should take into consideration evidence of good character of witness in passing on credibility held proper.

When plaintiff offers evidence of the good character of its witness, a contention that the jury should take such evidence into consideration in passing upon the weight of the witness’ testimony, is proper, and objection that the court did not instruct the jury in like manner with reference to the evidence of the good character of defendant’s witnesses is untenable, the record disclosing that the court fully gave like contentions of defendant.

Appeal by defendant T. T. Edwards from Armstrong, J., and a jury, at December Term, 1937, of Moose. No error.

This was a civil action for the recovery of a truck and for judgment on note, in which defendant T. T. Edwards set up a defense of infancy *738at time contract was made and a counterclaim against plaintiff and bis codefendant, Mid-Soutb Motors, Inc. From an adverse verdict and judgment, T. T. Edwards appealed to tbe Supreme Court.

Tbe jury having been selected, sworn and impaneled, tbe pleadings were read, tbe witnesses duly sworn and tbe following evidence offered and agreements made by and between tbe counsel:

“By consent of counsel for plaintiff and defendants, it is agreed that tbe first issue is to be answered Yes. It is agreed between tbe parties hereto that tbe contract sued on in this action, dated 5 March, 1936, was duly executed by tbe defendant T. T. Edwards on tbe date of tbe execution of said contract tbe defendant T. T. Edwards paid to tbe Mid-Soutb Motors, Inc., tbe sum of $287.45 as tbe initial payment on tbe purchase price of tbe truck sold and delivered to T. T. Edwards on tbe date of tbe execution of said contract, and that tbe said T. T. Edwards, on 5 April, 1936, paid $53.77; 5 May, 1936, $53.77; 5 June, 1936, $53.77; and on 5 July, 1936, paid tbe sum of $53.77, tbe last four payments aggregating tbe sum of $214.66, being paid to tbe General Motors Acceptance Corporation. It is further agreed between tbe parties hereto that tbe balance due on said contract by tbe defendant, provided tbe jury should find that it is a valid and binding contract, is $430.16, with interest from 16 November, 1936, this balance to be credited with tbe gross sale price of tbe Chevrolet truck, to wit: $300.00.”

Tbe judgment of tbe court below was as follows: “This cause coming on to be beard and being beard at December, 1937, Civil Term of tbe Superior Court of Moore County, North Carolina, before tbe undersigned judge and a jury, sworn and impaneled to try tbe cause, upon tbe following issues:

“ ‘1. Did tbe defendant T. T. Edwards execute tbe conditional sales contract on 5 March, 1936, as alleged in tbe complaint? Ans.: “Yes,” by consent.

“ ‘2. Was tbe defendant T. T. Edwards at said time a minor, as alleged in tbe defendant T. T. Edwards’ answer? Ans.: “No.”

“ ‘3. What sum, if anything, is tbe plaintiff entitled to recover of tbe defendant T. T. Edwards? Ans.: “$130.16.”

“ ‘What sum, if anything, is tbe defendant T. T. Edwards entitled to recover of bis codefendant, tbe Mid-Soutb Motors, Inc? Ans.: “Nothing.”

“ ‘5. What sum, if anything, is tbe defendant T. T. Edwards entitled to recover of tbe plaintiff? Ans.: “Nothing.”’

“According to stipulations made and agreed to between tbe parties to this action in tbe trial of this case, all of tbe aforesaid issues, except issue No. 2, were answered by consent. Tbe jury, for its verdict, answer tbe second issue No.’

*739“It is therefore, upon motion of the General Motors Acceptance. Corporation, plaintiff, and the Mid-South Motors, Inc., defendant, considered, ordered and adjudged that the defendant T. T. Edwards take nothing in this action, and that the plaintiff General Motors Acceptance Corporation have and recover $130.16, with interest from this date until paid, against the defendant T. T. Edwards, same being the balance of the purchase price of said motor truck, after entry of proper and agreed credits, and it is further ordered and adjudged that the defendant T. T. Edwards and the surety on his prosecution bond, if any, pay the cost of this action to .be taxed by the clerk of this court. Frank M. Armstrong, Judge Presiding.”

The defendant T. T. Edwards made numerous exceptions and assignments of error and appealed to the Supreme Court. The material ones and necessary facts will be considered in the opinion.

S. R. and K. R. Hoyle for T. T. Edwards.

Mosley C. Boyette for plaintiff and defendant Mid-South Motors, Inc.

Clarkson, J.

T. T. Edwards, the defendant, disaffirmed his contract, demanded judgment for what he had paid on the truck (which was seized by plaintiff under claim and delivery — not replevined), and set up the defense of infancy. All the issues were answered by consent of the parties to the controversy except the second: “Was the defendant T. T. Edwards at said time a minor, as alleged in the defendant T. T. Edwards’ answer?” This issue was submitted to the jury by consent and was answered “No.”

“In Chandler v. Jones, 172 N. C., 569 (572), Allen, J., says: 'The contract of an infant is voidable and not void, and it may be either ratified or disaffirmed upon attaining majority at the election of the infant. If money is paid to an infant upon a contract and it is consumed or wasted, the infant may recover the full amount due under the contract.’ Rawls v. Mayo, 163 N. C., 177; Hogan v. Utter, 175 N. C., 332; Gaskins v. Allen, 137 N. C., 430; Baggett v. Jackson, 160 N. C., 31. See Faircloth v. Johnson, 189 N. C., at p. 431. The defense of infancy must be set up in the answer, and if not pleaded will be considered as waived. Hicks v. Beam, 112 N. C., 642.” Cole v. Wagner, 197 N. C., 692 (699). See Morris Plan Co. v. Palmer, 185 N. C., 109; Hight v. Harris, 188 N. C., 328; Coker v. Bank, 208 N. C., 41.

The determination of the controversy depended on the jury’s answer to the second issue. T. T. Edwards testified that he was 21 years of age on 15 April, 1936. The truck was purchased on 5 March, 1936; at that time he was not asked how old he was and he did not tell his age. That he bought a truck prior to this time, in 1935, from Mid-South Motors, Inc., his codefendant in this action. The mother and father of T. T. *740Edwards testified that be was bom on 15 April, 1915. A book and tbe Bible were offered in evidence to corroborate tbem. Tbe plaintiff and defendant Mid-Soutb Motors, Inc., contradicted tbe evidence of T. T. Edwards and introduced O. L. Seymour, vice president and manager of Mid-Soutb Motors, Inc., who testified that be was with tbe business on 15 March, 1936, and sold tbe truck to Edwards. That prior to that time be bad sold a truck to Edwards. That Edwards made tbe customary down payment and tbe balance was financed through tbe plaintiff. He testified that be asked Edwards certain questions as to bis birth and Edwards said be was born 4/15/1914. Seymour then made entry on tbe statement as follows: “Customer’s full name — T. T. Edwards. First— Surname— Date of birth — 4/15/1914. Color — White. (This was signed.) Undersigned warrants tbe truth and accuracy of foregoing information. Customer signs — T. T. Edwards.” Tbe witness Seymour further testified: “He (Edwards’ father) was present when be bought tbe other truck. I am talking about tbe truck T. T. Edwards bought from my company in 1935. Q. Was T. T. Edwards at that time asked by you as to what bis age was and a statement taken just as in this case? Ans.: Yes, sir. And bis age was recorded, and there was no contention at that time by bis father, who was present, that be was under age.”

E. B. Bowman testified: “I saw T. T. Edwards sign bis name down there on tbe line indicated for tbe customer to sign on statement which has been identified as defendant Mid-Soutb Motors, Inc., Exhibit No. 1.”

Tbe general reputation of O. L. Seymour, T. T. Edwards and bis father and mother were proved to be good. There was no plea of ratification or estoppel and tbe case was tried on-the theory that if tbe jury found that T. T. Edwards was a minor be was entitled to judgment for tbe payments be bad made on tbe truck. Plaintiff bad seized tbe truck under claim and delivery and same bad not been replevied. On this aspect tbe court charged tbe jury as follows : “Now, on this second issue, gentlemen of tbe jury, which is tbe only one you are concerned with in this case, tbe burden of proof is on tbe defendant T. T. Edwards to satisfy you from tbe evidence and by tbe greater weight thereof that be was a minor on 5 March, 1936, and that is tbe question necessary for you to decide in this case — whether or not on this day tbe defendant T. T. Edwards was a minor.”

There was no objection to tbe charge as to tbe burden of proof. We see no merit in tbe exceptions and assignments of error made by T. T. Edwards challenging tbe correctness of tbe court below’s admitting evidence of alleged oral declarations of tbe said Edwards as to bis age and questionnaire alleged to have been signed by him. Tbe issue was one of age. Edwards now says be was one month and 10 days under age when be got tbe truck and signed tbe contract. Tbe vendor, O. L. Seymour, testified that be.told him tbe date of bis birth was 15 April, *7411914, and signed a statement to that effect, and “Warrants tbe truth and accuracy of foregoing information.” The question of the truth or falsity of a matter does not depend on whether the testimony was given by a minor or adult. If it is competent its credibility is for the jury. We think the evidence competent to contradict the testimony of T. T. Edwards and his witnesses, and the issue of age was for the jury to determine.

The defendant T. T. Edwards prayed the court below to give two special instructions. The first was modified and explained and as given we see no prejudicial error. The second was declined as written, but the substance given in the charge. In this we see no error. Odum v. Oil Co., ante, 478 (483-4).

The court below in its charge said: “The plaintiff says and contends, gentlemen of the jury, that on the day this contract was made and executed, to wit: 5 March, 1936, that the defendant in this case appeared to be a man who had reached his majority, that is, 21 years of age, and that they had dealt with him before and says and contends that he made representations to them before that he was 21 years of age and the plaintiff says and contends that on this day in question in answer to a form that it was necessary to fill out before this contract could be entered into, the defendant T. T. Edwards told Mr. Seymour he was 21 years of age and answered certain other questions, so the plaintiff says and contends, gentlemen of the jury, that the defendant now is trying to dis-affirm this contract and get out of an obligation and recover the money he has paid out on account of the fact of his minority and his claim that on the day in question he was not of age, and the' plaintiff says and contends you ought not to believe that (that you ought to find from the facts and circumstances in this case that the defendant was of age on the day in question, 5 March, 1936).”

The defendant T. T. Edwards excepted and assigned error to the above, which we cannot sustain. He contended that “It is submitted to the jury that plaintiff contended appellant was impeached because he pleaded his minority,” etc. That he was asserting a legal right which he was justified in doing without “inadversion or criticism,” and “Neither the court below nor this Court, as courts, and as ministers of the law, can be wiser than the law itself; and cannot in an official capacity entertain or express views at variance with the law as written.”

Edwards likewise contends that the charge is inaccurate in other respects as to the appearance of Edwards that he was 21 years of age. That the witness had dealt with him before and he made representations to them that he was 21 years of age. It will be noted that the court below gives all the matters complained as contentions: “The plaintiff says and contends, gentlemen of the jury,” etc.

*742In S. v. Sterling, 200 N. C., 18 (23), it is written: “Slight inaccuracies in the statement of the evidence by the court in its charge to the jury, not called to its attention at the time, cannot be held as prejudicial error.”

In S. v. Barnhill, 186 N. C., 446 (450), citing numerous authorities, is the following: “If the recitals of the court were incorrect as to the facts of the case, it was the duty of the defendant to call the court’s attention to it, so that the correction could be made then and there. If this was not done at the time, the defendant cannot complain and wait and except when the case is made up on appeal.” S. v. Sinodis, 189 N. C., 565 (571); Sorrells v. Decker, 212 N. C., 251. In Smith v. Hosiery Mill, 212 N. C., 661, the facts are different and that case is inapplicable.

The defendant Edwards excepted and assigned error (which cannot be sustained) to the following portion of the charge: “Now, on the other hand, gentlemen of the jury, the plaintiff in this case, the General Motors Acceptance Corporation, says and contends that you ought to answer this issue No; that is, that T. T. Edwards was over 21 years of age on 5 March, 1936. It says and contends that the defendant in this ease has failed to carry the burden of proof which the law places on him, that is, to satisfy you, by the greater weight of the evidence, that he was under 21 years of age. That is, the plaintiff says that the quality of this evidence is such that you ought not to believe it and believe it by the greater weight of the evidence, plaintiff saying and contending first, gentlemen of the jury, that the defendant and all of his witnesses are interested and likely to testify along the line of their own interest and that of the defendant, he being their son, so plaintiff says and contends first, that when you go out to weigh the evidence you ought to take that into consideration; that they are interested in the outcome of this verdict. You will recall the instructions which the court gave you relative to the evidence of interested witnesses.” The above portion of the charge objected to was a contention and based on the evidence. Edwards contends that “His Honor charged the jury, attempting to do so as a contention, that they might infer something was the matter with the ‘quality’ of appellant Edwards’ evidence,” etc.

The court below had theretofore charged the jury: “The law says, gentlemen of the jury, or it is said by reason of our law, that it is the duty of the jury to look into and examine the evidence of interested witnesses because an interested witness might testify along the line of his or her own interest, if you find they are interested; however, it is said by reason of the law after you examine and look into an interested witness’ testimony, if you find such interested witness is telling the truth then his or her evidence is entitled to the same weight and credit as that of a disinterested witness. Also it is said by reason of our law, gentle*743men of the jury, that a person of good character is more apt to tell the truth than a person of bad character and, therefore, it is said by reason of the law, that when you go to weigh the credibility and weight of a witness’ testimony whose character has been proved good or bad it is proper for you to give consideration to character evidence; that is, it is not substantive evidence in the case but it goes to the weight and credit and the witness whose character has been shown to be good or bad, so it is proper for you to consider character evidence in arriving at the truth in this case.” This part of the charge was not objected to. The word “quality” complained of by Edwards was used not in the sense of natural superiority, but as to the weight given to interested witnesses.

In In re Mrs. Hardee, 187 N. C., 381 (382-3), it is written: “We are unable to agree with propounder’s interpretation in its entirety, or to conclude that this instruction, taken in connection with other portions of the charge, should be held for reversible error, even if slightly objectionable, standing alone. It is now settled law that the charge of the court must be considered and examined by us, not disconnectedly, but as a whole, or at least the whole of what was said regarding any special phase of the case or the law. The losing party will not be permitted to select detached portions of the charge, even if in themselves subject to criticism, and assign errors as to them, when, if considered with other portions, they are readily explained, and the charge in its entirety appears to be correct. Each portion of the charge must be considered with reference to what precedes and follows it. In other words, it must be taken in its setting. The charge should he viewed contextually and not disjointedly. Any other rule would be unjust, both to the trial judge and to the parties.”

The appellant’s exception and assignment of error which complains that the court improperly charged the jury with respect to the good character of the witness Seymour. This was a proper contention as evidence was offered of the good character of the witness. It is contended that this was error because the court did not refer to the good character of appellant and his witnesses. This is not borne out by the record. Appellant, in his brief, complains that the court did not in this connection, or elsewhere, charge or refer to similar evidence of the defendant Edwards’ good character and that of his witness. "With respect to this the court charged as follows: “So, on this issue, gentlemen of the jury, the defendant T. T. Edwards says and contends you ought to answer this second issue Yes; that is, that he was under the age of 21 years at the time he executed this contract on 5 March, 1936. He says and contends, gentlemen of the jury, first, that both he and his witnesses are men and women of good character, and that men of good character and women of good character are more apt to tell the truth than people of bad character and, therefore, he says and contends that *744be. bas testified to you tbat be knows bis age and be says tbat on 5 March, 1936, be lacked a month and ten days of being 21 years of age, and says tbat be was born on 15 April, 1915, and therefore, upon a simple matter of calculation, it being admitted tbat this contract was executed on 5 March, 1936, tbat would make him less than 21 years of age, and therefore be says and contends tbat be bas testified to tbat fact and tbat be is a man of good character and, therefore, you ought to find tbat be was less than 21 years of age on tbat date.” The issue was a simple one to determine the age of T. T. Edwards. Taking the charge as a whole, we can see no prejudicial or reversible error.

No error.