(Filed 8 April, 1936.)
1. Evidence B d —
The burden is on defendant to prove an offset claimed by him.
2. Trial D b —
The court may direct a verdict on an issue against the party having the burden of proof on the issue when such party fails to introduce evidence on the issue or when the evidence offered and taken to be true fails to make out a case.
APPEAL by defendants from Barnhill, J., at November Term, 1935, of LENOIR. No error.
Wallace White for plaintiff.
James R. Patton, Jr., A. R. Wilson, and Robert D. Holleman for defendants.
This is an action to recover on a note executed by the defendants and payable to the plaintiff.
The defendants admit the execution of the note described in the complaint, and in their answer plead an offset or counterclaim.
The issues submitted to the jury were answered as follows:
"1. Did the defendants execute and deliver the note sued on? Answer: `Yes.'
"2. What amount is now due and unpaid thereon? Answer: `$650.00 and interest.'
"3. What offset, if any, are the defendants entitled to by reason of the matters and things set out and alleged in the answers? Answer: `None.'"
From judgment that plaintiff recover of the defendants the sum of $650.00, with interest from 15 November, 1932, and the costs of the action, the defendants appealed to the Supreme Court, assigning as error the instructions of the court to the jury with respect to the third issue.
There was no evidence at the trial of this action tending to support an affirmative answer to the third issue. The burden in this issue was on the defendants, and for that reason there is no error in the instruction of the court to the jury that they should answer the third issue, "None."
Defendants' assignment of error cannot be sustained.
The court may always direct a verdict against the party who has the burden of proof, if there is not evidence in his favor, as where he fails to introduce any evidence, or if the evidence offered and taken to be true fails to make out a case. McIntosh, N.C. Prac. and Proc., p. 632.