Shepherd v. Taylor, 169 N.C. 258 (1915)

May 24, 1915 · Supreme Court of North Carolina

169 N.C. 258

T. B. SHEPHERD v. R. L. TAYLOR et al.

(Filed 24 May, 1915.)

1. Contracts — Commissions—Deeds and Conveyances — Probate,—Seals—Evidence.

In an action to recover commissions for obtaining title to a certain copper mine, wherein the defendant denies the agreement and refuses to accept the conveyance, it is competent for the plaintiff to put in evidence the deed to show performance on his part, though the required seal of the probate officer had not been attached, this being confined to the purpose for which it was admitted, and not as evidence of title; it being permissible for the seal of the officer to be affixed upon defendant’s accepting the deed.

2. Trials — Evidence—Impeachment.

Held, in this case, testimony of a cértain witness was admissible for the purposes of impeachment.

Appeal by defendant from Webb, J., at August Term, 1914, of MacoN.

Action to recover tbe sum of $2,500, alleged to be due for services in procuring options or other contracts under which tbe defendants would be able to obtain tbe title to tbe Angel Copper Mine.

Tbe defendants denied tbe contract as alleged by tbe plaintiff.

There was a verdict and judgment for tbe plaintiff, and tbe defendants appealed.

T. J. Johnston, H. G. Robertson, J. Frmlc Ray, and M. Silver for plaintiff.

G. F. J ames and J. Scroop Styles for defendants.

Pee Cubiam.

Tbe controversy between tbe plaintiff and tbe defendants is one of fact as to tbe terms of tbe contract, which ha,s been settled by tbe jury in favor of tbe plaintiff, and we find no error committed upon tbe trial.

Three exceptions taken by tbe defendants, one being raised by an objection to evidence and two by prayers for instructions, are to tbe validity of the deed which was tendered to the defendants for the copper mine, on account of the fact that the notary public before whom the proof as to the execution of the deed was made failed to affix his notarial seal.

The deed was not offered as a link in a chain of title, but as evidence that the plaintiff had performed his contract; nor did the defendants refuse to accept it because of the absence of the seal, but upon the ground that they had not entered into a contract which compelled them to pay the plaintiff for his services.

The execution of the deed was not denied, and as the action was not one to recover land, the seal could have been affixed at any time if the defendants had agreed to accept it.

The plaintiff offered evidence fully sustaining the allegations in his complaint, and the motion for judgment of nonsuit could not therefore have been allowed.

The questions asked the witness Taylor, upon his examination, were competent as impeaching, and his Honor only admitted the evidence for that purpose.

No error.