after stating the case: The pleadings raised but one principal issue. The defendant, in its answer, admitted to be true the allegation of the complaint that the plaintiff had from time to time deposited money with it aggregating the sum specified, and had drawn his check upon it, as alleged, for divers sums of money aggregating the sum specified, which were duly paid; but it denied that any balance was due to the plaintiff except the sum of three hundred and sixty-five dollars and sixty-nine cents, and alleged further, as matter of principal defence, that it had, at the request and by direction of the plaintiff and for his benefit, paid divers checks for money to the amount alleged drawn upon it by M. L. Stevens, Treasurer of the County of Union, leaving the balance admitted to be due. This the *117plaintiff denied, and thus was raised the material tissue of fact. The other issues submitted to the jury, and others proposed by the defendant but not submitted, were incidental— not necessary to be tried, and might have been omitted.
The first issue in order submitted to the jury, though not so precise and formal as it might have been, sufficiently embodied that raised as indicated. It embraced and presented fully the whole matter in dispute, and the parties on the trial of it could have produced all pertinent competent evidence. Under proper instructions from the Court, the jury could readily have understood its meaning and merits and rendered a just verdict. If the allegation of ihe defendant was found to be true, then the balance clue the plaintiff was the sum it admitted to be due to him ; if it were found not to be true, then the plaintiff was entitled to judgment for the sum demánded by the complaint. The first issue proposed by the defendant was not sufficiently direct — it would settle only a material incidental fact involved in the issue really raised by the pleadings. Moreover, the first issue submitted gave the defendant the largest opportunity to prove his alleged defence, and this was sufficient. The second, third, fifth and seventh issues proposed by the defendant were not .raised by the pleadings, they had reference to matters not controverted; the fourth and sixth issues proposed were embraced by the fourth and fifth issues submitted to the jury. Merely incidental and immaterial issues ought not, ordinarily, to be submitted; they may, and oftentimes do, confuse or tend to confuse the jury, and when they do, this will be ground for a new trial, if proper objection is made in apt time. In this c.ise we cannot see that the defendant probably suffered prejudice by reason of the issues submitted. These were quite as pertinent as those proposed by it. The exception to the issues cannot, therefore, be sustained
Much of the evidence produced on the trial was conflicting and indefinite. While parts of it tended to prove, as alleged *118by the defendant, that, at the request and by the direction of the plaintiff, it paid checks drawn upon it by Stevens, Treasurer, and he agreed to pay it for honoring such checks; there was also some evidence from which the jury might have inferred that the plaintiff promised to pay the defendant the sum of money advanced to Stevens, Treasurer, on his own account, if he failed to do so. The plaintiff testified, among other things, that he never requested or directed the defendant to pay such checks, nor promised to pay it for doing so. There was evidence that, repeatedly, he was told bjr defendant’s agents that it held him responsible on such account, and he did not deny his liability; that he said he would see Stevens, Treasurer, and make him account, etc. It was also testified by the officers of the defendant “that there was nothing upon the books of the bank going to show any charge of Stevens’ overdraft against Horne; that, according fo the custom of their bank and by their usual methods of doing business, if the bank looked to Horne for any money advanced to Stevens, Home ought to have been required to draw7 on the bank for the amount, and this check should have been charged to him and credited to Stevens; that even a depositor could not draw7 out his ow7n money from the bank without giving his check for it, and that no money was paid out except upon the order of the president, unless a check w7as drawn or a note was made. This was not only the custom of their bank, but w7as a general custom with banks.”
This, and like evidence, tending to prove that the defendant did not at first charge the plaintiff with the sums of money it paid in honoring the checks of Stevens, Treasurer, but looked to him to repay the amounts so advanced to Stevens, Treasurer, on his own account, if he failed to do so, was not very strong; still the plaintiff might insist, as it seems he did, that if the jury believed from all the evidence he simply undertook to pay the debt of Stevens, Treasurer, he *119would not be liable, because such undertaking and promise was not in writing, and, therefore, void. The Code, § 1552. The first special instruction had reference to the aspect of the case presented by the evidence just referred to. It must be said that this instruction was vague and not very intelligible; still it can be seen that the purpose was to ask the Court to instruct the jury that if they should find that the plaintiff promised and undertook to pay the debt of Stevens, Treasurer, due to the defendant, if he failed to do so, then such agreement and promise would be void under the statute of frauds. As there was some evidence presenting such view of the case, the Court might give the instruction, modified by what it added thereto. The addition was cautionary, and intended to prevent the jury from being misled — to tell them, in that connection, that if, on the contrary, the plaintiff was a principal in the debt created by the advancement of the money, along with Stevens, then he would be liable. Hence, the Court said, in giving the instruction, “If the defendant bank, in making said advancements, trusted to one of the parties more than to the other, but did, in fact, trust to one, together with the other, the plaintiff would be liable,” etc. The instruction, given simply as asked for, might have misled the jury, but, as modified and explained by the Court, it was not misleading, certainly, taken in connection with the numerous instructions giveu at the request of the defendant. The second exception cannot, therefore, be sustained.
The third exception is clearly unfounded. The instruction must be taken in connection with the issue to which it refers. The whole of the evidence pertinent went to prove that, at the time the plaintiff received the note as mentioned in the issue, he made no agreement to pay the defendant the money it advanced to pay the checks drawn by Stevens, Treasurer. Moreover, the evidence pertinent went to prove further that the defendant received the note from Stevens as collateral security after it was due, and the plaintiff had no notice or *120knowledge of the fact that the defendant had it for any purpose until after he had paid and discharged the same. So that the defendant could not avail itself of the note for any purpose. The Code, §177; Marton v. Richardson, 68 N. C., 255; Whedbee v. Reddick, 79 N. C., 521; Pugh v. Grant, 86 N. C., 39.
The defendant was not entitled to have the seventh special instruction asked for by it. What the plaintiff said on the occasion therein referred to was not a promise to pay the claim of the defendant, nor was it an admission that he was bound for the same, nor could the defendant reasonably act upon it as such promise or admission. Besides, what was said must be taken in connection with other evidence going strongly to prove that the defendant’s officers and agents well knew that the plaintiff denied his liability as claimed by it. Moreover, there was' no evidence tending t > prove that, after the occasion referred to, the defendant suffered any disadvantage or damage by reason of any reliance it placed on what the plaintiff said. After that time it surrendered the note mentioned to the plaintiff, but, for reasons already stated, it had no right to have or withhold it from him — he had paid and effectually discharged and was entitled to have it.
For the like reasons, the Court properly declined to give the eighth special instruction asked for by the defendant. It might wTell have declined to do so, upon the ground that it had in substance given the seventh and eighth instructions in several prior special instructions asked for, which it granted without qualification.
The last instruction the Court gave the jury was appropriate, certainly not objectionable — just after the numerous special instructions it had given at the request of the defendant’s counsel. Indeed, having directed the attention of the jury to the view of the evidence contended for by the defendant, it fairly, in the same connection, directed their attention *121to the other view thereof contended for by the plaintiff. This was fair and just. The defendant has no just ground of complaint'at the Court because of the instructions it gave or those which it refused to give. It gave, in substance, all the instructions the defendant asked for.
■ Affirmed.