Action on Note — Subscription to Stock — Practice — Issues — Allegation of Tender — General Denial of Plaintiff's Right to Recover — Judgment Non Obstante Veredicto.
1. It is too late after verdict to except to failure to submit issues tendered and to issues actually submitted.
2. The trial judge may, in his discretion, submit one or many issues arising on the pleadings, subject only to the restriction that sufficient facts be found to enable the court to proceed to judgment and that each party may have the opportunity to prevent any view of the law arising upon the evidence through pertinent instructions.
3. A general denial by the defendant of the plaintiff's right to recover cures the failure of plaintiff to allege a tender before action brought.
4. Where one executes a note to a corporation as security for the payment of stock therein, the transaction is a subscription to or purchase of the stock from the company itself, and not a purchase from another, and hence a tender of the certificate by the company is not necessary before bringing action on the note.
5. Judgment non obstante veredicto is only granted when the answer confesses a cause of action and the matter relied on in avoidance is insufficient.
CLARK, J.
The first and second exceptions for failure to submit the issue requested, and for issues actually submitted, come too late after verdict. The Code, sec. 412 (2); Phifer v. Alexander, 97 N.C. 335; Taylor v. Plummer, 105 N.C. 56; Lowe v. Elliott, 107 N.C. 718. The issues are, however, in fact, sufficient under the rule approved in Humphrey v. Church, 109 N.C. 132. The "general denial" cured any failure to allege tender of the certificate, as the only reason for requiring a tender before action brought is to throw the costs of an unnecessary action upon the plaintiff. Waddell v. Swann, 91 N.C. 108; Moore v. Garner, 101 N.C. 374. Besides, this is not a purchase from another, but from the company itself, and in effect a subscription to its capital stock. The prayers for instruction, so far as correct and relevant to the case, were given. There was no ground for the motion for judgment non obstante veredicto, which is only granted when the answer confesses a cause of action and the matter relied on in avoidance is insufficient. Walker v. Scott, 106 N.C. 56.
No error.
Cited: Martin v. Bank, 131 N.C. 124; Sykes v. Boone, 132 N.C. 208; Shives v. Cotton Mills, 151 N.C. 291; Audit Co. v. Taylor, 152 N.C. 274.
(410)