Clemons v. Lewis

209 S.E.2d 291 (1974)

23 N.C. App. 488

Bill CLEMONS v. Carlyle LEWIS.

No. 7413DC562.

Court of Appeals of North Carolina.

November 6, 1974.

*292 Ralph G. Jorgensen, Tabor City, for plaintiff.

No counsel contra.

BROCK, Chief Judge.

The plaintiff contends the trial court committed error when it twice failed to grant the plaintiff's motions for a mistrial. Both the defendant and the defense counsel commented that the plaintiff was in jail on 3 December 1972. This was irrelevant to the subject matter of the action, and plaintiff correctly made motions to strike this testimony. The trial judge properly instructed the jury to disregard this testimony, but declined to grant plaintiff's motions for a mistrial. The plaintiff asserts that Barbour v. Lewpage Corp., 20 N.C.App. 271, 201 S.E.2d 221, supports his contention that the motions for a mistrial should have been granted. However, that case turned on the trial judge's failure to instruct the jury to disregard a prejudicial and incompetent remark. In 2 McIntosh, N.C. Practice 2d, § 1548, it is said:

"The causes for which a mistrial may be ordered are varied and within the discretion of the court. It may be necessary on account of the sickness or other disability of the judge, juror, parties or counsel; or it may be necessary to prevent injustice, as where a party is taken by surprise after the trial has begun, or it is discovered that a juror is disqualified or there has been an improper remark or expression of opinion by the court, or abuse of privilege by counsel, or some misconduct on the part of the jurors or others, or when the jury fails to agree upon a verdict after reasonable time for deliberation."

The exercise of discretion is to be determined by a sound and enlightened judgment, and courts will not interfere unless discretion is abused. Hensley v. Furniture Co., 164 N.C. 148, 80 S.E. 154 (1913). In the case at bar no abuse of discretion appears. Plaintiff's first assignment of error is overruled.

Plaintiff argues that the trial judge committed error when he charged the jury:

"[W]hen one person loans to another a sum of money on condition that it is to be repaid, that amounts to what is known in law as a contract. A contract is an agreement between two or more parties on sufficient consideration to do or to refrain from doing a particular act. In order to constitute a valid contract, there must be an agreement of the parties upon the essential terms of the contract, definite within themselves or capable of being made definite, there must be an offer and an acceptance, a meeting of the minds; competent adults have the right to make any contract they want to make which is not contrary to law or public *293 policy and the Court will not inquire as to whether it was a good contract or a bad one. "If one party loans to another a sum of money and the other party promises to repay that sum of money, the promise to repay is sufficient consideration to make the contract binding. I also charge you, Ladies and Gentlemen of the Jury, that a contract to loan money or a promise to repay a loan is not required to be in writing."

At oral argument the plaintiff's counsel conceded that the charge was correct but argued that the charge confused the jury. This assignment of error is wholly without merit.

Finally the plaintiff contends that the trial court committed error when it failed to give a falsus in uno falsus in omnibus charge requested by the plaintiff. There is no authority in North Carolina supporting the plaintiff's contention. It is well settled that a refusal of a requested charge is not error where the instructions which are given fully and fairly present every phase of the controversy. Muse v. Seaboard Air Line Railway Company, 149 N.C. 443, 63 S.E. 102, 19 L.R.A.,N.S., 453 (1908). This assignment of error is overruled.

It is our opinion that plaintiff had a fair trial free from prejudicial error.

No error.

MORRIS and MARTIN, JJ., concur.