The appellants excepted to the issue submitted and to the judge's refusal to submit to the jury the issue which they tendered. The exception is overruled upon the familiar principle reiterated upon similar facts in Cornelius v. Brawley, 109 N.C. 542: "The issue submitted arose on the pleadings, and was such as afforded either party opportunity to present any view of the law arising upon the evidence through the medium of pertinent instructions, and was therefore sufficient ( Humphrey v. Church, ante, 132; McAdoo v. R. R., 105 N.C. 140; Denmark v. R. R., 107 N.C. 187, Leach v. Linde, 108 N.C. 547), and indeed, follows the precedents in such cases. Eaton's Forms, 282. The issues suggested by appellants presented rather evidential than constitutive facts, and were properly rejected.

Arguments had been made to them, and no doubt, as we have said, the (558) plaintiffs' counsel, without objection on the part of the defendant, had urged that there was some foundation for his allegation that the contractor quit the work after the acceptance of the order and the delivery of plaintiffs' brick because of a collusive arrangement between the defendant and himself. Under these circumstances, his Honor seems to have felt it his duty to caution the jury in the defendant's behalf, and he said to them the words quoted above. In Leach v. Linde, 108 N.C. 547, it is said: "The Court should not give instructions, special or otherwise, in the absence of evidence to which they are pertinent and that warrants them. It would be error to do so if they prejudiced the adverse party." The rule thus stated is well established. It seems to us that, under the circumstances, the instructions thus given by his Honor could not have prejudiced the defendant's cause.

However, we do not think they would have availed the defendant if they had been taken in apt time, because the issues settled by his Honor, and submitted to the jury, were sufficient and proper. Emery v. R. R., 102 N.C. 209; Leach v. Linde, 108 N.C. 547. The record of the suit of S. M. Carr against Richmond Pearson, executor, was properly excluded. It did not show the pendency in the Superior Court of Buncombe of another action between the same parties and for the same cause of action.

It is settled by repeated decisions of this Court that, while the issues must arise upon the pleadings, the trial judge may, in his discretion, submit either one or many, subject only to the restriction that sufficient facts shall be found to enable the court to proceed to judgment, and that neither party shall be denied the opportunity to present any view of the law arising upon the evidence through the medium of pertinent instructions. McAdoo v. R. R., 105 N.C. 140; Denmark v. R. R., 107 N.C. 187; Leach v. Linde, 108 N.C. 547. The issues submitted were in compliance with these requirements, especially after the admissions made by the defendant.

CLARK, J. The issue submitted arose on the pleadings, and was such as afforded either party opportunity to present any view of the law arising upon the evidence through the medium of pertinent instructions, and was therefore sufficient (Humphrey v. Church, ante, 132; McAdoo v. R. R., 105 N.C. 140; Denmark v. R. R., 107 N.C. 187; Leach v. Linde, 108 N.C. 547), and indeed, follows the precedents in such cases, Eaton's Forms, 282. The issues suggested by appellants presented rather evidential than constitutive facts, and were properly rejected.