The opinion
Clark, C. J.
This is an action to recover one barrel of whiskey. The evidence was that the plaintiffs shipped the barrel of whiskey to one Cuthrell without any order from him and without his knowledge; that he wrote plaintiffs at once that he had not ordered it and would not receive it, but had taken it out of depot to save storage charges against plaintiffs — paying freight on' it for them (which they paid back) — that it was subject to their order, though if they
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chose to let it stay till be should want it for use, be would take it, but could not use it at that time; to tbis plaintiffs assented by letter. Outbrell never included tbé whiskey in any settlement witb plaintiffs and on an execution against him declined to allow tbis barrel to be included in tbe allotment of bis exemption because not bis property. Tbe defendant is tbe sheriff who seized tbe property under execution against Outbrell. Tbe only issue found was whether tbe plaintiffs were tbe owners of tbe whiskey, to which tbe jury responded “No.”
Tbe Court charged the jury that upon tbe evidence Outh-rell did not order the whiskey and that plaintiff’s reply to Outhrell’s letter did not constitute a sale, but added that invoicing tbe whiskey to Outbrell was an offer to sell, and “if Outbrell in receiving it from tbe common carrier and taking it into bis possession did so witb tbe intention of accepting tbe offer thus made, tbis amounted to an acceptance and vested title to tbe whiskey in Outbrell.” Tbis was excepted to. Tbis instruction was unsupported by the evidence, which was uncontradicted, that Outbrell bad then no such intention. Upon tbe question whether the subsequent offer by Outbrell to bold tbe whiskey till be should have use for it did not constitute a conditional sale, tbe Oourt charged that tbe plaintiff’s reply was not sufficient- to constitute such sale, and tbe defendant is not appealing.
It was error in tbe Judge to give to tbe jury an abstract proposition of law not supported by any view of tbe evidence.
Brown v. Patton,
35 N. C., 446 ;
King v. Wells,
94 N. C., 344 . . It has been uniformly held by tbis Court that a failure to instruct tbe jury that there is no evidence (eases cited in Clark’s.Code (3 Ed.), p. 511), or indeed an omission or failure to give any proper instruction, is waived unless there is a prayer for such instruction. Olark’s Code (3 Ed.), p. 514, and numerous cases cited. But none tbe
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less if there is an error in the instruction given an exception thereto is valid if entered within ten days after adjournment for the term. Code, sec. 550. An error upon the face of the charge (unlike a mere failure to charge which is waived by not requesting an instruction) is only waived by not entering an exception thereto in the time allowed by law. Rule 27; Clark’s Code (3 Ed.), pp. 920,
777,
778, 512, 513; Code, see. 550. The instruction here given of a proposition of law, without any evidence to support it,
King v.
Wells, 94 N. C., 344 , was duly excepted to and was
Error.