The opinion
CONNOR, J.
The issue tendered by the defendants and refused by the court is raised by the pleadings in this action. An affirmative answer to this issue would be determinative of the controversy between the plaintiff and the defendants, unless as alleged in the reply filed by the plaintiff, defendants have waived their right to rescind the contract by virtue of which the notes sued on in this action were executed by them. The single issue submitted by the court was not sufficient to enable the defendants to present to the court and to the jury the contentions on which their defense to this action is founded. It was therefore error to refuse to submit the issue tendered by the defendants, and for this error, the defendants are entitled to a new trial. See
Gaskins v. Mitchell,
194 N. C., 275 , 139 S. E., 435 ; Brown
v. Ruffin,
189 N. C., 262 , 126 S. E., 613 ;
Owens v. Phelps,
95 N. C., 286 .
The form and number of the issues in the trial of a civil action are left to the sound discretion of the judge, subject to the following restrictions: (1) That only issues of fact raised by the pleadings should be submitted; (2) that they be such that a verdict upon them will enable the court to render a judgment; and (3) that the parties shall have the opportunity to present any view of the law arising out of the evidence.. All the issues of fact raised by'the pleadings, and only such issues, should be submitted, and whether there shall be one or more, and in what particular form, is left to the judge, provided the above conditions are met. It is error to submit the single issue, “How much, if anything, is the plaintiff entitled to recover,” if other issues are raised, since this leaves out the controverted facts upon which the right to recover is based. McIntosh N. C. Frac, and Proc., p. 545.
New trial.