There were several exceptions to the ruling of his Honor in this case, but as only one, to wit, the fourth, stated in the bill is considered by this Court, the others are omitted. That exception is as follows: "That there was no evidence to rebut the presumption (15) that the order collected by plaintiff's intestate was still unaccounted for." The plaintiff had made out a prima facie case by the evidence for a considerable sum of money, all of which, except $59, was met by evidence that the parties had had a settlement, and the plaintiff's intestate had taken a note for the amount referred to by the proof. As to the overplus, it was attempted to be met by the evidence of one Skinner. He testified that in the fall of 1859 the plaintiff's intestate, Clayton, presented to him for acceptance an order drawn on him by one Rogerson, in favor of defendant Hall for $80; that he accepted the order, and about 1 January, 1860, he called at the store of said Clayton, when the same order was produced and he paid it to him (Clayton); that this order had never been indorsed by the defendant. *Page 12 His Honor, in respect to this order, charged that it not having been indorsed, and having been presented and collected by the plaintiff's intestate, the law presumed that he was acting as agent of the defendant, the payee, and therefore they must allow it and find for the defendant, unless the evidence in the case satisfied them that the plaintiff's intestate had already accounted for it. This was excepted to, as above stated.
Verdict for the plaintiff, and on judgment being rendered, the defendant appealed. In considering this case, we have confined our attention to a single exception, the fourth in order, which objects to the instruction of the court below, in respect to the money paid on the order for $80. The order was drawn by one Rogerson in favor of Hall upon T. S. Skinner, and the latter testified that it was presented unindorsed to him by the intestate, A. W. Clayton, and that he paid it to the said (16) Clayton. This raised prima facie an indebtment to that amount from Clayton to Hall. We have examined the statement of proofs in this case and do not find any evidence of a payment, of a credit on account, or other settlement of the same. When his Honor therefore submitted it to the jury to say whether it had or had not been accounted for, it was error. To leave a question of fact to the jury, without some evidence bearing upon the matter and upon which they might base their verdict, is to invite them to wander into the field of conjecture and to act upon the uncertain suggestions there met with.
The case was admitted to turn in one aspect of it upon the point whether the money received by Clayton upon the draft payable to Hall was ever accounted for by Clayton with Hall, and this being left to the jury without evidence vitiates the finding. Cobb v. Fogleman, 23 N.C. 444; Sutton v.Madre, 47 N.C. 320. There must be a
PER CURIAM. Venire de novo.