First National Bank & Trust Co. v. Levy, 209 N.C. 834 (1936)

April 8, 1936 · Supreme Court of North Carolina

209 N.C. 834

THE FIRST NATIONAL BANK AND TRUST COMPANY IN MACON v. N. D. LEVY et al.

(Filed 8 April, 1936.)

1. Evidence B d—

Tbe burden is on defendant to prove an offset claimed by bim.

2. Trial D. b—

Tbe court may direct a verdict on an issue against tbe party having tbe burden of proof on tbe issue when sueb party fails to introduce evidence on tbe issue or when tbe evidence offered and taken to be true fails to make out a case.

Appeal by defendants from Barnhill, J., at November Term, 1935, of Lenoir.

No error.

This is an action to recover on a note executed by tbe defendants and payable to tbe plaintiff.

Tbe defendants admit tbe execution of tbe note described in tbe complaint, and in their answer plead an offset or counterclaim.

Tbe issues submitted to tbe jury were answered as follows:

“1. Did tbe defendants execute and deliver tbe note sued on? Answer : ‘Yes.’

“2. What amount is now due and unpaid thereon? Answer: ‘$650.00 and interest.’

“3. What offset, if any, are tbe defendants entitled to by reason of tbe matters and things set out and alleged in tbe answers ? Answer: ‘None.’ ”

Prom judgment tbat plaintiff recover of tbe defendants tbe sum of $650.00, with interest from 15 November, 1932, and tbe costs of tbe action, tbe defendants appealed to tbe Supreme Court, assigning as error tbe instructions of tbe court to tbe jury with respect to tbe third issue.

Wallace & White for plaintiff.

James B. Patton, Jr., A. B. Wilson, and Bobert D. Holleman for defendants.

Per Curiam.

There was no evidence at the trial o£ this action tending to support an affirmative answer to the third issue. The burden in this issue was on the defendants, and for that reason there is no error in the instruction of the court to the jury that they should answer the third issue, “None.”

Defendants’ assignment of error cannot.be sustained.

The court may always direct a verdict against the party who has the burden of proof, if there is no evidence in his favor, as where he fails to introduce any evidence, or if the evidence offered and taken to be true fails to make out a case. McIntosh, N. C. Prac. and Proc., p. 632.

No error.