In order to fix the defendant with liability, it was incumbent upon the plaintiff to establish that W. E. Watkins, who accepted the bill of exchange, was the agent of the defendant, and that the acceptance of such a paper was within the scope of his agency. There was no testimony of any express authority, and the plaintiff relied upon the various circumstances in evidence from which such authority might be inferred. Without passing upon the sufficiency of the charge, had there been no prayer for special instructions, we are very (709) clear that in view of those asked for by the defendant (embodying, as some of them do, correct principles of law applicable to phases of fact presented by the testimony), the court erred in submitting the question of authority as an open one to the jury.
Apart from this, however, we are of opinion that there was error in the action of the court in respect to the fourth issue, which was as follows: "Is the plaintiff indebted to the defendant by reason of counterclaim, and if so, in what sum?" The replication admitted the facts constituting the counterclaim and set up matter in avoidance thereof. The defendant asked the court to charge that the burden of *Page 511 proof was on the plaintiff to establish the matter in avoidance, and also, that as he had introduced no evidence in support of the same, the issue should be answered in the affirmative. The court refused to so instruct, but told the jury that "the pleadings, in this case, were not offered in evidence, and unless they were so offered, they are not evidence. Smith v.Nimocks, 94 N.C. 243. There being no evidence before the jury on the counterclaim, the jury will answer the fourth issue, `No.'"
Possibly his Honor placed his ruling upon the form of the issue, which by its terms involved the truthfulness of the allegations in support of the counterclaim, whereas the issue should have put in question only the matter in avoidance. But the defendant was not responsible for this, as his Honor refused the issues offered by counsel, and himself prepared those which were submitted. To these the defendant excepted, and if there be anything in their form which precluded the defendant from insisting upon his prayers for instruction as to the burden of proof, etc., he is surely not to be prejudiced thereby. It is true that the issue offered by the defendant upon this point was not materially different from that submitted by the court, but the exception was not merely to the refusal to submit this issue, but "to the issue (710) submitted."
The court, therefore, having taken upon itself the responsibility of preparing the issues, could not deprive the defendant of any right to which he was entitled on the face of the pleadings, and in this way put in issue matter which was admitted, and then refuse to charge that the burden was upon the plaintiff to establish the matter in avoidance. The decision cited has no application in this view of the case. The principle there declared applies only when the pleadings are to be used as evidence upon issues properly raised and submitted.
For these reasons, we think that there should be a new trial.
Error.
Cited: S. c., 112 N.C. 751. *Page 512