Opinion
(Filed 2 December, 1902.)
1. INSTRUCTIONS — Oral — Judge — The Code, Sec. 415.
The trial judge may disregard an oral request for instructions.
2. INSTRUCTIONS — Appeal — Case on Appeal — The Code, Sec. 414.
A statement of the trial judge as to what the instructions to the jury were, where orally given, and in the absence of a request that they be put in writing, is binding on appeal.
3. INSTRUCTIONS, PRAYER FOR.
An omission to charge on a given point is not error, unless there is a prayer to instruct thereon.
4. EXECUTORS AND ADMINISTRATORS — Claim — Filing — The Code, Sec. 164.
The admission of the validity of a claim by an administrator, where presented within proper time, dispenses with any formal proof thereof.
ACTION by M. H. Justice, executor of Emily Forney, against Solomon Gallert, administrator of J. A. Forney, heard by Judge F. D. Winston and a jury, at June (Special) Term, 1902, of RUTHERFORD. From a judgment for the plaintiff the defendant appealed.
Eaves Rucker for the plaintiff.
McBrayer Justice for the defendant.
The appellant properly concedes that "the requests for instruction having been oral his exception for failure to charge as asked cannot be sustained. The statute is explicit that "the judge may disregard them." Code, sec. 415.
There was no request for the judge to put his instructions in writing (Code, sec. 414), and the case on appeal states that he did not do so, but that he jotted down some disconnected notes of his charge, in which notes, as written, it appears that he instructed the jury on a certain state of facts to answer "Yes," which was erroneous; but the judge states in the case on appeal that in fact he told the jury upon that state of facts, if found, to answer "No." The charge was not handed to the jury, and the material matter is what was said to them, and we are bound by the judge's statement of fact. The counsel for the appellant, in a letter to the judge, incorporated in the case, says he has no personal recollection how the judge stated it to the jury, and that if he said "Yes" he is satisfied it was a clear inadvertence. As the judge said to the jury "No," the inadvertent entry on his notes "Yes" could do no harm. If the charge containing the word "Yes" had been handed to the jury (Laws 1885, ch. 137; Clark's Code, 3 Ed., sec. 414) this would have been reversible error, though the judge had orally said "No," and this though the "Yes" in the written charge was a mere inadvertence. Again, if the charge had been written out at request under Code, sec. 414, it should have been signed and filed with the clerk. This would have made it "part of the record," and this would control any statement in the case on appeal. S. v. Truesdale, 125 N.C. 696.
It was not error to omit to charge the jury as to the length of time that would be a statutory bar. An omission to charge on a given point is not error unless there is a prayer to instruct the jury thereon. Clark's Code (3d Ed.), p. 514, and numerous cases there collected. Besides, the case on appeal states: (395) "The case was presented to the jury by both parties on the question of the statute of limitations, on the ground that if the defendant administrator had recognized the claim it was not barred, and if he had not that it was barred, and this the court explained to the jury." So there was no dispute as to the length of time.
The court instructed the jury: "If Mrs. Forney presented this claim to the administrator and demanded payment, and he admitted that the amount was due and promised to pay it, you will answer the issue `No.'" And further: "The recognition of the amount by the administrator must be positive and unconditional." The defendant excepted on the ground that there was no evidence to support these hypotheses. Upon that exception we need consider of course only the evidence for the plaintiff. R. F. Tate, son-in-law of the plaintiff's testatrix, testified that within a year after the qualification of the defendant as administrator he heard the defendant tell Mrs. Forney (plaintiff's testatrix) that when he could get the money he would pay her; that this promise was made in reference to this money; also, that the defendant had made him the same promise six or eight months after the death of the defendant's intestate, and that the defendant then stated that he knew that his intestate had the money (alleged to have been deposited with him by plaintiff's testatrix), and that it was a mystery to him what became of it. There was no dispute as to the amount. The controversy was as to whether the administrator had so acted as to bar the running of the statute.
This was sufficient evidence to go to the jury. In Stonestreet v. Frost, 123 N.C. at pages 646 and 647, it is said that it is a sufficient "filing," under the Code, sec. 164, when the claim is presented within the proper time to the personal representative and he acknowledges the validity of the debt. "The creditor can never compel the administrator to `string' the claim. He has done his part when he has presented it to the (396) administrator with sufficient certainty as to the nature and amount of the debt, and the admission of its validity by the administrator dispenses with any formal proof thereof. When he admitted the validity of the judgment he admitted the correctness of the amount. There was nothing else to prove." To similar purport Woodlief v. Bragg, 108 N.C. 571; Turner v. Shuffler, ibid., 642.
In this case there was no dispute as to the amount which, if due at all, was a sum collected on a judgment in favor of Mrs. Forney, plaintiff's testatrix, by defendant's intestate, a lawyer, and left with him for investment, to-wit, $705, less $150, which was thus invested by him for her. It is not sought in this action to fasten any liability upon the defendant individually.
No error. Cited: S. v. Worley, 141 N.C. 768; Nelson v. Tobacco Co., 144 N.C. 420.