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with the plaintiff, and that there should be some confusion in his mind. It would seem that good faith and fair dealing would have suggested to the several parties to explain to the plaintiff with whom and with what corporation he was dealing, and being employed. It is this very uncertainty, which surrounds the testimony, that in our opinion makes it conjectural and speculative, and not sufficient to be the basis of a verdict. It may be that in another trial both parties will be able to make a fuller disclosure of the facts which are within their knowledge. Courts should be, and we think are, careful not to trespass upon the "ancient mode of trial by jury," but they must be equally careful to preserve the symmetry of the judicial system which has come to us as the result of the wisdom and experience of the centuries, by firmly preserving the rights, duties and powers of the judge in the trial of causes at law. Verdicts must be founded upon evidence, and the court must say what is evidence. The weight, credibility and conclusions of fact to be drawn from it are the province of the jury.

The defendant contended before us that the contract, if made, was ultra vires and not binding upon the corporation. This defense is not raised by, or set up in the answer. The majority of this court were of the opinion on the former hearing that this defense could only be made by way of a plea of confession and avoidance. The former Chief Justice and Mr. Justice Montgomery thought otherwise, as set forth in the dissenting opinion. The authorities sustain the view of the majority of the court. It is said in 5 Enc. Pl. and Pr., page 95: "In an action against a corporation, the plaintiff need not set out in his complaint or declaration the capacity of the corporation to make the contract sued on. When the defense of ultra vires is allowable to a corporation, the corporation must specially plead it." In the text-books, the


plea is always spoken of as "a defense." 1 Clark & M. Corp., Sec. 174; 5 Thomp. Corp., Sec. 5967.

The defendant will pursue such course in this respect as it may be advised.

Petition Allowed.

DOUGLAS, J., dissenting. Taking the opinion of the court in its regular order, my first objection is to the vague and indefinite manner in which a well established doctrine is therein stated. The possibility of bi-lateral construction is always a dangerous defect in the definition of a principle. In any event it tends to weaken the principle and may become the entering wedge in its eventual destruction. During the recent floods in the Mississippi River, I was much impressed at the published statement that five hundred men were at work on the Waterloo levee attempting to stop up what was originally only a crawfish hole. We may well learn a lesson from the laws of nature and hence I sometimes dissent more on account of what the opinion may lead to, than from what it actually decides.

The opinion says: "The only question thus presented for our consideration is whether there was any sufficient testimony to be submitted to the jury to sustain the plaintiff's allegation," etc. I have italicized the word "sufficient" as also some other words quoted in this opinion in order to emphasize my objective point. The proposition would have been complete without this word, as a mere scintilla is not considered as evidence. Even as it stands, the word has been so often defined as meaning anything more than a scintilla that it might not be objectionable were it not for other expressions in the opinion that tend to misconstruction.

Further on the opinion says: "In this condition of the testimony we think it impossible, from a legal standpoint, for a jury reasonably to conclude that the plaintiff had shown


a contract between the defendant company and himself." This can only mean that in the opinion of this court the preponderance or greater weight of the evidence was against the plaintiff. What have we to do with deciding where lay the greater weight of the evidence? That matter is exclusively within the province of the jury. This is clearly set forth in Wittkowsky v. Wasson, 71 N. C., 451, the leading case upon the subject and the one on which the court now principally relies. The court in that opinion says in express words: "Where there is any evidence to support a plaintiff's claim, it is the duty of the judge to submit the question to the jury, who are the exclusive judges of its weight." And again, "Whether there be any evidence is a question for the judge. Whether sufficient evidence is for the jury." It is true the court then proceeds to use expressions which are capable of a different construction, so much so that it felt it necessary to expressly disclaim any intention to "extend or alter any rule of practice or evidence heretofore recognized in this State." Judge Reade assented to the decision "upon the explanation therein, that it was not to be interpreted as an innovation upon the established rule that the jury are the sole judges of the weight of evidence without any intimation of opinion on the part of the judge." Judge Bynum, while concurring in the opinion of the court that there was no evidence to go to the jury, dissented from the opinion as introducing a new and dangerous proposition.

It is remarkable that in this celebrated case the difficulty with the court lay, not in determining the merits of the controversy, but in arriving at the true meaning and tendency of the opinion. Time has more than justified the dissent of the great jurist whose opinion stands as a monument to one who seems to have joined the instinct of the seer to the wisdom of the sage.

In Cobb v. Fogalman, 23 N. C., 440, cited by the court,


Judge Gaston clearly draws the distinction between a defect of evidence and evidence confessedly slight, and properly decides the case on the ground that there was no evidence of a fraudulent intent. This appears from the evidence and is distinctly stated in the concluding paragraph, which is as follows: "We feel ourselves constrained to hold that there was error in leaving it to the jury to infer from the testimony a fraudulent intent in the defendant, when no evidence had been given from which such an intent could be inferred." There is no intimation in that opinion that this court can pass upon the sufficiency of the testimony.

I am aware that the term "sufficient evidence" has been frequently used by this court, but I respectfully submit that taken in connection with the context of those opinions, or at least with contemporaneous opinions by the same judges, it clearly appears that the term means simply that the evidence must amount to something more than a mere scintilla. A few examples will suffice: In State v. Allen, 48 N. C., 258, in an able opinion delivered by Judge Pearson, the court says: "An error may have crept into our practice by reason of the judges not having attached due importance to the distinction between the condition of things in England, whence we are in the habit of taking our notions of law, and the condition of things here, where the trial by jury is protected both by the Constitution and by legislative enactment. A judge is not at liberty to express an opinion as to the sufficiency of the evidence. When there is a defect, or entire absence of evidence, it is his duty so to instruct the jury, but if there be any competent evidence, relevant and tending to prove the matter in issue, it is 'the true office and province of the jury' to pass upon it, although the evidence may be so slight that any one will exclaim 'certainly no jury will find the fact upon such insufficient evidence;' still the judge has no right to put his opinion in the way of the free action of the jury, even should


he deem it necessary to do so, in order to prevent them from being misled by the arguments of counsel or their own want of apprehension." This opinion will well repay a careful perusal, and will clearly show that the great chief justice would never have concurred in Wittkowsky v. Wasson but for the positive assurance that it did not change or modify the existing rule that the jury were the sole judges of the weight of the evidence.

In State v. Cardwell, 44 N. C., 245, the court, by Battle, J., says: "Hence it is settled that if there be no testimony sufficient to establish a fact, it is the duty of the judge to say so; but if there be any testimony tending to prove the fact, he must leave its weight to be determined by the jury." The italics were by the court.

In the case at bar the opinion of the court quotes the language of Chief Justice Faircloth in Young v. Railroad, 116 N. C., 932, but in the same case immediately after the words quoted by the court on page 937, come the following: “There is, or may be, in every case a preliminary question for the judge, not whether there is absolutely no evidence, but whether there is more than a scintilla of evidence upon which the jury can properly proceed to find a verdict for the party introducing it, upon whom the burden of proof is imposed." The court also cites the oft-cited case of Spruill v. Ins. Co., 120 N. C., 141. It would seem that the opinion taken in its entirety is free from ambiguity, but in Cox v. Railroad, 123 N. C., 604, decided by the same court and written by the same judge, appears the following unequivocal enunciation of the principle: "It is well settled that if there is more than a mere scintilla of evidence tending to prove the plaintiff's contention, it must be submitted to the jury, who alone can pass upon the weight of the evidence." See also Moore v. St. Ry., 128 N. C., 455; Cogdell v. Railroad, 129 N. C,. 398; Dorsett v. M'f'g Co., 131 N. C., at p. 263, where

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