FLOYD F. CORRELL and wife, HESSIE W. CORRELL v. DAVID L. HARTNESS, t/a HARTNESS REALTY COMPANY, AND J. CARROLL ABERNETHY, JR., AS TRUSTEE, 261 N.C. 89

Bobbitt, J. In limine, it is noted that MathiaMa A. Hartness iis not a party to this -action. Hence, her interest, if any, in the $6,000.00 note ■and the deed of trust to Abernethy, Jr., Trustee, is not -affected by the verdict and judgment. The verdi-ot, whether considered .alone -or in conjunction with the •charge, -does not establish, the .terms of the agreement entered into- between plaintiffs and defendant.

While the court -adjudged the $6,000.00 note and the deed of trust to- Abernathy, Jr., Trustee, null amid void, whether plaintiffs are now .indebted to defendant f-or .any part of the agreed purchase -price of $15,500.00 for the Belle View property has not been determined. The single issue submitted relates solely .to whether the execution by plaintiffs o-f the $6,000.00 note and the deed of trust to Abernethy, Jr., Trustee, was procured -by false and fraudulent representations of defendant.

The following is -typical of instructions to. which defendant excepted and assigns as -error: “Now, the Court instructs you if you are satisfied from this evidence ¡and by its greater weight that Hartness did make a misrepresentation to Mr. 'and Mrs. Oorrell — .that he wil-fully and purposely made -a -misrepresentation to them -and that he misled them and misinformed them that they were signing -a release, when in truth ¡and in fact he knew that they were signing a Deed of Trust and a note, -and that -he purposely misled them and that they (Mr. .and Mns.

Oorrell) reasonably, by the exercise of due care on their part . . . that they reasonably -relied upon these representations by Mr.

Hartness and they signed -under those circumstances, then the Court instructs you -that you would ¡answer -that first question ‘Yes.’ If you are not so satisfied from (this -evidence and by its greater weight that -they were misled -and that they exercised reasonable care — the care of a reasonable -business person in -signing papers — then you would answer it ‘No’.” With reference to whether defendant represented the $6,000.00 note and the deed of trust to Abernethy, Jr., Trustee, to be .a release or releases, the evidence for plaintiffs and defendant, respectively, i.s in sharp conflict.

Apart from conflicting .allegations -and evidence >as to. whether such representations were in .fact made, defendant alleged and offered evidence tending to show that plaintiffs were obligated iby the terms of their agreement to execute the $6,000.00 note and the deed -of trust to Abernethy, Jr., Trustee, and that their execution thereof was merely a ¡compliance with their contractual obligation.

If the jury accepted this view, the issue should have been answered, “No.” However, the issue was submitted and the jury was instructed solely with reference to whether the $6,000.00 note 'and the deed of 'trust to Abemethy, Jr., Tirotee, were signed by plaintiffs omi account of alleged misrepresentations by defendant as to what they were and without reference to Whether plaintiffs were obligated by their agreement to sign them.

In our view, the validity of the $6,000.00 note and the deed of trust to Abemethy, Jr., Trustee, must be determined in the context of the entire agreement entered into between plaintiffs and defendant. Whether plaintiffs were obligated by their agreement to execute the $6,000.00 note and the deed of trust to Aberoetlhy, Jr., Trustee, was a substantive feature of the case (arising on defendant’© pleading and evidence. Failure to charge the law on such ¡substantive feature, even in the absence of special request for such instruction, wa© prejudicial error for which defendant is entitled to a new trial. Whiteside v.

McCarson, 250 N.C. 673, 680, 110 S.E. 2d 295, and cases cited. Defendant assigns as error 'the overruling of hi© motion for judgment of involuntary nonsuit. In this connection, defendant relies on Isley v. Brown, 253 N.C. 791, 117 S.E. 2d 821, on cases «¿ted therein and other decision© of like import. However, as indicated above, the trial proceeded on an erroneous theory.

Clearly, whether plaintiffs were obligated by their agreement with defendant to execute the $6,000.00 note and the deed of trust to Abemethy, Jr., Trustee, was of material significance in passing upon the sufficiency of plaintiffs’ evidence to. warrant submission of the single issue on which the case was tried. In these circumstances, defendant’s assignment of error is overruled. Upon retrial, the court will be free to consider defendant’© motion for judgment of nonsuit, if interposed, without direction or restraint by any statement in this opinion.

While not the basis of decision on this appeal, it seems appropriate to call attention to the matters set out below. There is a variance between plaintiffs’ allegation that defendant agreed to pay them $500.00 (a total of $1,000.00) as and when defendant sold each of said properties, to wit, the Correll property and the Lail property, and plaintiffs’ evidence. Plaintiffs’ evidence is to the effect that these amounts were to be loaos to enable plaintiffs to consolidate certain outstanding small obligations. Plaintiff Floyd F. Cor-rell testified: “I was to pay the $1,000.00 back to Mr.

Hartness at the rate of $30.00 a month.” The evidence tends to show plaintiffs did receive $500.00 from defendant when defendant sold the Correll property. All the evidence tends to show defendant did not obtain -a deed from Looper for the Lail property and- 'did not advance to plaintiffs the second $500.00. The causes and .consequences of defendant’s failure in these respects we mot pertinent on 'this app-eail. Suffice to say, defendant contends be was without fault in connection with his failure to obtain a deed for the Lail property and contends further that any failure on -his

part in this respect would at most entitle plaintiff© to a credit of some undetermined amount on their $6,000.00 note. Whether the parties should ask leave to file amendments to the pleadings to the end that all of their rights -and liabilities inter se may be determined in this action should receive consideration. New trial.