Cincinnati Butchers Supply Co. v. Conoly

ClabksoN, J.

After a careful review of tbe evidence and charge of tbe court below, we do not think plaintiff's exceptions and assignments of error can be sustained. All tbe elements of fraud and deceit were sufficiently pleaded by defendants, and tbe evidence on tbe trial sufficient to sustain defendants’ allegations of fraud and deceit to avoid tbe contract and recover damages. On account of tbe sinister ramifications of fraud and deceit, courts seldom lay down any bard and fast rule. Tbe general allegation of fraud and deceit and proof of same is sufficiently shown on tbis record. Tbe fact, under conflicting evidence, was for tbe jury to determine.

Tbe court below charged tbe jury: “Now, upon tbis issue tbe burden of proof is upon tbe defendant, Mr. Conoly, to satisfy you from tbe evidence and by its greater weight, tbat be was induced to sign tbis contract by tbe false and fraudulent representations of tbe plaintiff’s agent, as alleged in tbis answer.”

Plaintiff in its brief asks “Ought tbe judge to charge tbe degree of proof was on tbe defendants only by tbe greater weight or by tbe preponderance of tbe evidence ?” As we understand it, plaintiff does not challenge tbe correctness of tbe court below in charging tbat tbe burden of proof, onus probandi, was on tbe defendants, but it contends tbat tbe proof should be by tbe preponderance and not by tbe greater weight of the evidence as charged by tbe court below.

We think the contention is a distinction without a difference. They are synonymous.

In 10 R. C. L., Evidence, p. 1012, part sec. 204, we find: “There is no doctrine of tbe law settled more firmly than tbe rule which authorizes issues of fact in civil cases to be determined in accordance with the preponderance or weight of the evidence. Tbe reason of the rule no doubt *680 is, that as between man and man, where a loss must fall upon one or tbe other, it is right that the law should cast it upon him who is shown to have been the cause of the loss, by proof establishing the reasonable probability of the fact.” 23 C. J., p. 16, sec. 1749;

Mewborn v. Smith, 200 N. C., 532, 533 .

In Chaffin v. Mfg. Co., 135 N. C., 95, 99-100 , it is said: “When the part of the charge of the court excepted to is considered and tested by this reasonable rule of the law, we think it sufficiently and indeed clearly appears that the jury were instructed, at least substantially, that the plaintiffs were required to make out their case by a preponderance of the evidence, and that the court explained to them with sufficient fullness and accuracy what it meant by the preponderance of the testimony and how the jury should apply the rule to the facts and circumstances of the case in order to determine whether plaintiff had met the requirement. The use of the word ‘satisfied did not intensify the proof required to entitle the plaintiffs to their verdict. The weight of the evidence must be with the party who has the burden of proof or else he cannot succeed. But surely the jury must be satisfied or, in other words, be able to reach a decision or conclusion from the evidence and in favor of the plaintiff which will be satisfactory to themselves. In order to produce this result or to carry such conviction to the minds of the jury as is satisfactory to them, the plaintiffs proof need not be more than a bare preponderance, but it must not be less. The charge, as we construe it, required only that plaintiffs should prove their case by the greater weight of the evidence.” We have examined the record and find no prejudicial or reversible error.

No error.