Sorrell v. McGhee, 178 N.C. 279 (1919)

Oct. 15, 1919 · Supreme Court of North Carolina

178 N.C. 279

R. L. SORRELL v. J. C. McGHEE and R. L. McGHEE, Administrators.

(Filed 15 October, 1919.)

1. Evidence — Deceased Persons — Transactions and Communications — Executors and Administrators — “Against Interest” — Statutes.

In an action upon an account with the deceased, against his son and administrator, the plaintiff introduced his ledger, kept in his own handwriting, showing the balance claimed to be due, and offered to show by the defendant that both the defendant and his intestate knew in the latter’s lifetime of this balance shown on the ledger to be due; that then the defendant made a partial payment thereon and promised to return and get a statement of the account, which he failed to do: Held, this evidence, offered through the defendant, was against his interest, and not incompetent under the statute, and its exclusion was reversible error. Btmn v. Todd, 107 N. C., 266, cited and applied.

2. Same — “Open Door.”

Where the defendant, administrator of the deceased, is put upon the stand by the plaintiff and forced to testify against his interest in an action upon an account with the deceased, the admission of this testimony is not objectionable on the ground that it would open the door to other and incompetent transactions and communications with a deceased person, prohibited by the statute, this being the result only when the defendant has voluntarily testified in his own interest.

3. Evidence — Deceased Persons — Transactions and Communications — Interest of Witness.

A tenant of a deceased person who has settled with the deceased for goods bought by the former on the latter’s account, who is not sought to be held liable in the plaintiff’s action' against the administrator of the deceased, is not interested in the event of the action, and is not prohibited by the statute as to communications or transactions with a deceased person, from testifying to the sale and delivery of the goods set out in the statement of the account sued on, and the exclusion of such testimony is of material evidence and constitutes reversible error.

Appeal by plaintiff from Allen, J., at May Term, 1919, of Wake.

This is an action to recover $84.66 alleged to be due by account for goods sold and delivered, commenced before a justice of the peace, and heard on appeal in the Superior Court.

The plaintiff introduced evidence showing that he was a farmer and also had a gin and store, and he produced upon the trial his account book or ledger in which he kept the account against the intestate of the defendants in his own handwriting. This book was excluded upon the trial.

There are several exceptions to the exclusion of evidence which will be referred to in the opinion.

At the conclusion of the evidence his Honor entered judgment of nonsuit, and the plaintiff excepted and appealed.

W. 6r. Briggs attorney for plaintiff.

B. N. Simms attorney for defendants.

AlleN, J.

In Bunn v. Todd, 107 N. C., 266, the present Chief Justice gives an accurate and valuable analysis of section 1631 of the Re-visal, as follows:

It disqualifies — Whom:

1. Parties to the action.

2. Persons interested in the event of the action.

3. Persons through or under whom the persons in the first two classes derive their title or interest.

A witness belonging to one of these three classes is incompetent only in the following cases:

When. — To testify in behalf of himself, or the person succeeding to his title or interest, against the representative of a deceased person or committee of a lunatic, or any one deriving his title or interest through them.

And the disqualification of such person, and in such instances, is restricted to the following:

Subject-matter.' — -A personal transaction or communication between the witness and the person since deceased or lunatic.

And even in those cases there are the following

Exceptions. — When the representative of or person claiming through or under the deceased person or lunatic is examined in his own behalf, or the testimony of the deceased person or lunatic is given in evidence concerning the same transaction.-

This is a guide and standard for determining the competency of evidence under this section, and when properly applied, we are of opinion error has been committed in the exclusion of evidence, which entitles the plaintiff to a new trial.

The plaintiff offered evidence tending to prove that he kept his account against the intestate of the defendant in a book at his store, and he then called one of the administrators and a son of the intestate and he offered “to show by the witness, who is a defendant in this action, that in the lifetime^ of his father, and a short time before his death, the witness went to the store of the plaintiff for his said father and made a part payment on this specific account in this particular ledger, taking a written receipt therefor from plaintiff, and then and there setting a •day wben be would return and get a statement of tbe amount of balance bis said father owed, but never did so; and further, to show that tbis account was known by tbe witness and tbe deceased to exist and to be •due tbe plaintiff.”

Tbis evidence was excluded, and plaintiff excepted.

Tbe witness is a party but be was testifying against bis own interest and not in bis own b'ebalf, and be is therefore not excluded by tbe statute.

“In Tredwell v. Graham, supra, it was said that, Notwithstanding tbe statute, a party may be called to testify touching a transaction of tbe opposite party wben it is against bis own interest.’ In Weinstein v. Patrick, 75 N. C., 341, Justice Reade said that ‘It would seem that there could be no objection against allowing a witness to testify against bis own interest.’ It is not within tbe spirit or letter of tbe statute, as bis own interest is supposed to be a sufficient protection for tbe opposite •party against false or fabricated testimony. Tbis appears to be well settled by tbe cases.” Seals v. Seals, 165 N. C., 412.

Tbe apprehension of tbe defendant that if we permit a plaintiff to call an administrator as a witness it will open the door to testimony of tbe plaintiff, which would otherwise be incompetent, is groundless, as tbis result only follows wben tbe administrator is a voluntary witness testifying in bis own behalf and not wben be is forced upon tbe witness stand to testify against bis interest.

Tbe plaintiff also introduced Eli Thompson and offered to'prove by him that be was a tenant of tbe intestate during tbe years 1916 and 1917 and lived on tbe farm with him; that tbe intestate furnished him from tbe store of tbe plaintiff, and offered to show tbe sale and delivery by tbe plaintiff to tbe witness of articles of merchandise which were charged in tbe account against tbe defendant.

This was objected to, and tbe plaintiff excepted.

Tbe witness stated, without objection, that be bad settled in full with tbe intestate for all be owed him.

Tbis witness is not a party to tbe action, and as tbe record now stands be is not interested in tbe event of tbe action, as it does not appear that tbe plaintiff has any charge against him or bolds him in any way responsible for any part of tbe account.

Tbe evidence was material, and we see no reason for its exclusion as tbe witness does not come within any of tbe prohibitions of tbe statute.

These errors are material, and a new trial is therefore ordered.

Eeversed.