Shepherd v. Sellers, 182 N.C. 701 (1921)

Dec. 21, 1921 · Supreme Court of North Carolina

182 N.C. 701

T. B. SHEPHERD v. W. H. SELLERS.

(Filed 21 December, 1921.)

Evidence — Hearsay—Principal and Agent — Brokers—Commissions.

When the controversy is whether or not the owner was to pay his selling agent or broker a commission upon the sale of his lands at a certain price, or whether the price was to be net to him, a witness who has had a conversation with the owner respecting it does not render his evidence incompetent as hearsay, by the use of the words “my impression” or “my understanding,” etc., these words referring more or less to the uncertainty of the memory of the witness; nor will the evidence be objectionable as uncertain of the source of this recollection when it may be seen by reference to his answers to other questions that he was testifying to what he had heard the owner say.

Appeal by defendant from Long, J., at April Term, 1921, of MacoN.

Civil action to recover agent’s commissions on tbe sale of certain real estate.

There was evidence adduced on tbe bearing tending to sbow tbat tbe defendant agreed to pay tbe plaintiff a reasonable compensation for bis services if be would procure a purchaser for tbe defendant’s farm at tbe price of $5,000. A sale was effected upon these terms, but tbe defendant declined to pay tbe plaintiff, contending tbat tbe amount received was to be net, and tbat plaintiff agreed to look to tbe purchaser for bis commissions.

Upon tbe traverse and issues tbiis joined, there was a verdict and judgment in favor of tbe plaintiff. Defendant appealed, assigning errors.

Johnston & Horn, Gilmer A. Jones, and Bourne, Parker & Jones for plaintiff.

T. J. Johnston, H. G. Robertson, and R. D. Sisk for defendant.

Staot, J.

Tbe defendant’s principal exception is directed to tbe ruling of tbe court in allowing tbe witness Greenwood to give bis understanding of tbe contract witb respect to tbe plaintiff’s commissions. Tbe witness was being examined as to bis conversation witb tbe defendant concerning tbe matter. He bad stated, in answer to a question as to wbat tbe defendant bad said, if anything, in regard to paying tbe plaintiff for bis services, that be could not remember exactly wbat was said. He was then asked: “Mr. Sellers did say that be would take $5,000 for tbe farm, but would not be responsible to Mr. Shepherd for anything ?” To this tbe witness replied: “No; as I understood it, be was to take care of Tom (plaintiff).” Defendant objected, and moved to strike out tbe answer upon tbe ground that it comes within tbe rule prohibiting hearsay evidence; and further, because it does not appear from whom or wbat source tbe witness obtained bis information or understanding.

It will be conceded that the competency of this evidence must be determined by tbe fair and reasonable inference as to wbat tbe witness intended to say, and did say. Plaintiff insists that tbe witness was only stating wbat be understood tbe defendant to say in regard to tbe matter, while tbe defendant contends bis impression or understanding may have been, and doubtless was, obtained from some other source. ¥e think tbe next succeeding question and answer, immediately following tbe defendant’s objection, will suffice to make clear bis meaning: “Please state again just wbat you understood Sellers to say in regard to Shepherd getting a commission?” Answer: “I said I will pay you $5,000, one-third in cash, and you settle witb Shepherd, and be said, ‘All right.’ Now that is wbat was said.” From tbe foregoing we think' it reasonably appears that tbe witness was giving bis understanding of wbat tbe defendant bad said; and, if this be so, tbe evidence was competent. Gilliland v. Board of Education, 141 N. C., 482.

Speaking to a kindred and somewhat similar question in tbe case just cited, Hoke, J., delivering tbe opinion, says: “A witness who undertakes to testify to objective facts and qualifies bis testimony by using tbe terms, ‘I think,’ or ‘I have an impression,’ etc., if tbe witness has bad no physical observation or has made no note of tbe facts, but is merely stating to tbe court and jury bis mental inference or deduction, this, as a rule, is incompetent. But if tbe witness bas bad opportunity to note relevant facts himself, and d'id observe and note them, and simply qualifies bis testimony in tbis way because bis impression or memory is more or less indistinct, tbis, while in tbe form of opinion, is really tbe statement of a fact, and will be so received.”

Quite a different question was presented in King v. Bynum, 137 N. C., 491, and we do not tbink our present bolding conflicts in any way with tbe decision in tbat case.

Upon an examination of tbe whole case, we have found no material error which would justify our disturbing tbe verdict and judgment, or tbe result of tbe trial.

No error.