Branch v. Ayscue, 186 N.C. 219 (1923)

Oct. 10, 1923 · Supreme Court of North Carolina

186 N.C. 219

OTHO BRANCH v. W. H. AYSCUE.

(Filed 10 October, 1923.)

1. Evidence — Declarations—Trespass—Title.

It is not objectionable, as unsworn declarations of tbe absent tenant, for tbe plaintiff in claim and delivery to testify, in bis action against tbe landlord for the possession of tbe tenant’s share of tbe crop, tbat tbe tenant bad assigned his share to him for the support of bis children, it being competent to show how he had acquired the title thereto.

3. Evidence — Book Entines.

A party to an action may not show unverified entries of credit in his behalf on his own books involved in a disputed account, the same not falling within the intent and meaning of C. S., secs. 1786, 1787, 1788, especially when it has not been made to appear tbat the person having made them is dead or cannot be bad to give his sworn statement of tbe transaction.

3. Same — Appeal and Error — Prejudice—New Trials.

Tbe erroneous admission of book entries in this case is held, for reversible error, being material to the principal issue in tbe cause, and prejudicial to appellants.

Appeal by defendant from Cranmer, J., at February Term, 1923, of FRANKLIN.

Civil action. Tbe action is to recover plaintiff’s share of crop of tobacco, or tbe value thereof, grown on lands of plaintiff for tbe year 1922 by Ed Alston, tenant of defendant, and sued for by plaintiff as assignee of tbe tenant. Defendant denied tbe indebtedness and claimed tbe tobacco for advancements made by bim to Ed Alston during bis said tenancy.

Plaintiff offered evidence tending to show tbat Ed Alston as tenant for defendant for 1922 grew a crop of corn, cotton, and tobacco on defendant’s land. Tbat tbe tenant, having determined to leave tbe State or community, put plaintiff in charge of bis eight children and assigned plaintiff bis crop, telling bim to sell same and apply proceeds in aid of tbe children’s support after paying bis landlord, tbe defendant, for a box of meat and a barrel of flour. Tbat plaintiff applied for said share, and defendant, assenting to tbe assignment, turned over to plaintiff tbe tenant’s share of tbe corn and cotton, saying tbat tbe tenant’s account was very little, not more than twenty-five or thirty dollars. Tbat when plaintiff applied for tbe tenant’s share of tbe tobacco, defendant refused to permit its removal till be was paid for bis advancements, alleged by defendant to be $223.76.

Defendant denied any assent to taking tbe crop as a right, saying be bad allowed plaintiff to pick out tbe cotton in charity to tbe children. He also denied saying tbe account of tbe tenant was only twenty-five or thirty dollars, and testified tbat tbe advancements were as stated, $223.76. Defendant also testified in denial of plaintiff’s claim tbat tenant bad lent defendant $200, or tbat tbe money included in bis claim for advancements was to repay tbe alleged loan. On issues submitted, tbe jury rendered a verdict as follows :

“1. Is tbe plaintiff tbe owner and entitled to tbe j>ossession of tbe tobacco described in tbe complaint? Answer: ‘Yes.’

“2. What was tbe value of said tobacco crop at tbe time of its seizure in claim and delivery? Answer: ‘$654.60.’

“3. In what sum, if any, is defendant indebted to tbe plaintiff? Answer: ‘$274.07.’”

Judgment for plaintiff, and defendant excepted and appealed, assigning errors.

Wm. H. & Thos. W. Ruffin for plaintiff.

W. M. Person for defendant.

Hoice, J.

Defendant excepts to tbe validity of tbe trial:

First, because tbe court allowed plaintiff to testify tbat Ed Alston, tbe tenant, assigned plaintiff bis share of tbe crop with directions to sell same and apply tbe proceeds in aid of bis children’s support, this on tbe ground tbat it admits tbe unsworn declarations of tbe tenant, but tbe objection is without merit and does not properly characterize tbe evidence. It does not give or purport to give merely tbe unsworn declarations of tbe absent tenant, but is tbe testimony of tbe plaintiff as to bow be acquired bis title, tbe witness speaking on oatb and on matter directly relevant to tbe issue.

Defendant excepts further for that tbe court, over bis objection, allowed tbe introduction of tbe account book of Ed Alston, purporting to contain a statement of bis dealings witb defendant, in tbe band-writing of bis daughter, Eula, and plaintiff was permitted to read to tbe jury certain entries in said book as follows:

“Loaned Ayscue (defendant)' $200 in 1921.

“Paid in April, 1922.”

And in our opinion this objection must be sustained.

There are conditions permitting tbe introduction of verified account books and copies of tbe same under specified and restricted conditions, appearing chiefly in C. S., secs. 1786-87-88, but we know of no principle, that will uphold tbe competency of an unverified account as containing entries in tbe parties’ own favor, assuredly not where it has not even been made to appear that such person is dead and cannot be bad to give bis sworn evidence of tbe transaction. Peele v. Powell, 156 N. C., 553-560; Bland v. Warren, etc., 65 N. C., 372; 17 Cyc., 365-368.

We at first thought that tbe entry might be regarded as harmless because tbe same book showed that tbe amount bad been repaid, but on further consideration of tbe record it appears that defendant claimed and was testifying to advancements to tbe amount of $223.76, chiefly in money, and these entries were capable of being used and no doubt were used as pregnant evidence on tbe part of plaintiff tending to show that these amounts paid to tbe tenant were not advancements as defendant contended, but were only in repayment of tbe loan as shown by tbe entries referred to. They were, therefore, undoubtedly material to tbe principal issue in tbe case, and their reception constitutes prejudicial error which entitles defendant to a

New trial.