#### CITIZENS NATIONAL BANK v. FLORIDA-CAROLINA ESTATES, Inc., and H. WALTER FULLER.

(Filed 18 March, 1931.)

1. Trial B c — Exceirtion to admission of evidence will not be sustained where evidence of identical import has been admitted without objection.

Exceptions to the admission of certain evidence upon the trial will not be sustained when testimony of substantially identical import has been introduced without objection.

2. Trial E c — Exception to charge on ground that it over-emphasized issue is not sustained under facts of this case.

Where the determination of the controversy admittedly depends upon the jury’s answer to an issue of fraud, exception to the charge of the *481court on the grounds that it unduly emphasized this issue will not be sustained on appeal when the record does not disclose that the trial judge abused his discretion in the manner of arraying contentions or stating propositions of law.

3. Trial E f — Mistake in stating contentions of party should he brought to judge’s attention in time for him to correct same.

Where the trial judge incorrectly states the contentions of the parties it is the duty of the party claiming error therein to call it to his attention in order to afford him an opportunity for correction.

4. Trial E h — Trial court may recall jury and give additional instructions in its discretion.

The mere fact that the trial judge recalled the jury of his own motion to give them additional instructions after the case had been given them, and in the absence of counsel, is no ground for exception where there is no contention that the supplemental instructions were erroneous in law.

Civil actioN, before *Schemck, J.,*at May Term, 1930, of HeN-deeson.

Tbe plaintiff instituted an action against the defendants upon a promissory note claiming a balance of $5,724.20. The defendants admitted the execution of the note, but alleged in substance that the note was procured for the purpose of paying a check issued on 24 April, 1926, by the Fleetwood of Hendersonville Hotel Corporation, when, as a matter of fact, at the time the original note was executed, the check had been paid; that the plaintiff had procured said note “upon misrepresentation in relation thereto which induced the defendants to execute said note,” and that said original note was executed “by reason of wrongful and incorrect representations of said officers and without any cause whatever.” When the case was called for trial the defendants admitted that they were severally■ and jointly indebted to the plaintiff in the sum of $5,'124.20 with interest from 23 August, 1927, “unless the issue of fraud was answered in their favor.”

The following issues were submitted to the jury:

1. “Did the plaintiff, The Citizens National Bank, procure the note of the defendant, Elorida-Oarolina Estates, Incorporated, endorsed by the defendant, H. Walter Fuller, for $7,614.40, dated 7 May, 1926, and the notes in renewal thereof, by the false and fraudulent representation that a check of the Fleetwood of Hendersonville Hotel Corporation, for $7,614.40 (including protest fees), was not paid on said date, namely, 7 May, 1926?”

2. “Is the plaintiff, Citizens National Bank, entitled to recover of the defendant, Elorida-Oarolina Estates, Incorporated, and H. Walter Fuller, the sum of $5,724.20 with interest from 23 September, 1927, as alleged in the complaint?”

*4823. “Are tbe defendants, Florida-Oarolina Estates, Incorporated, and H. "Walter Fuller, entitled to recover of tbe plaintiff, Citizens National Bank, tbe sum of $6,375.48, witb interest from 7 May, 1926, less $5,724.20, witb interest from 23 September, 1927, to wit, $1,287.52, as alleged in tbe answer and further defense?”

Tbe jury answered tbe first issue “No,” and tbe second issue “Yes.”

From judgment upon tbe verdict tbe defendants appealed.

*Ewianh, Whitmire & Weelcs for plaintiff.*

*Shipman, & Arledge and J. W. Pless for defendants.*

Per Curiam.

Exceptions 1, 2, 3, 4 and 5 are taken to certain questions and answers witb respect to indebtedness due by tbe Laurel Park Estates to tbe Fleetwood of Hendersonville Hotel Corporation. These exceptions cannot be sustained. While technically tbe questions might not have been competent, it appears upon tbe record on page twenty-three tbe defendant Fuller was asked substantially tbe same questions without objection, in which be stated that tbe Fleetwood of Hender-sonville Corporation claimed that. tbe Laurel Park Estates was indebted to it. Furthermore it appears that tbe Fleetwood Corporation and Laurel Park Estates were for all practical purposes interlocking corporations.

Other exceptions are addressed to tbe charge of tbe court on tbe issue of fraud. Such exceptions are based upon tbe theory that tbe trial judge unduly emphasized tbe issue of fraud, but tbe record discloses that there was no exception to submitting an issue of fraud and that tbe defendants admitted liability unless “tbe issue of fraud is answered in their favor.” Thus, fraud constituted tbe defense relied upon to defeat recovery, and there is nothing in tbe record to indicate that tbe trial judge abused bis discretion in tbe manner of arraying contentions or stating propositions of law.

Exception was also taken to tbe statement of a contention by tbe trial judge witb respect to two checks which were marked Exhibits H and I. If tbe trial judge stated tbe contentions incorrectly, it was tbe duty of tbe defendant to call bis attention to tbe matter in order that be might have an opportunity to make necessary corrections.

Exception was also taken to tbe fact that tbe trial judge of bis own motion recalled tbe jury and gave additional instructions during tbe absence of counsel. It is not contended that tbe supplemental instructions were incorrect. Hence, it cannot be said, as a matter of law, that it is error for a judge to recall a jury in bis discretion and to give such additional instructions as be may deem wise and proper.

A careful examination of the record and briefs fails to convince tbe Court that error was committed in tbe trial.

No error.