Virginia Truck Growers Manufacturing Corp. v. Moore County Mutual Exchange, 213 N.C. 658 (1938)

May 25, 1938 · Supreme Court of North Carolina

213 N.C. 658

VIRGINIA TRUCK GROWERS MANUFACTURING CORPORATION v. MOORE COUNTY MUTUAL EXCHANGE.

(Filed 25 May, 1938.)

Appeal and Error § 24—

Appellant excepted to a preceding question but did not except to the question eliciting tbe testimony complained of, or to the testimony. Held: The competency of the testimony is not presented for decision, since only exceptive assignments of error will be considered. Rule of Practice in the Supreme Court, No. 19 (3).

Appeal by plaintiff from Armstrong, J., at December Term, 1937, of Moore.

Civil action to recover on alleged contract for fertilizer sold and delivered on consignment.

Plaintiff alleges that between tbe dates of 6 March, 1934, and 3 July, 1934, it sold and delivered to defendant, on consignment, fertilizers of various kinds at tbe aggregate price of $18,903.66, of wbicb there is a balance of $1,371.57 due after demand and payment refused. Defendant denies tbe allegations of tbe plaintiff and avers that it purchased and received on consignment from Producers Mutual Exchange of North Carolina fertilizer of the amount alleged upon the express contract and agreement that it would retail same for a selling commission of $1.50 per ton, and that it had fully accounted to the said exchange. On the trial below the parties offered evidence tending to support their respective contentions. The case was submitted to the jury upon the single issue of indebtedness. There was verdict and judgment for defendant, from which plaintiff appealed to the Supreme Court, and assigns error.

Johnson & McCluer for plaintiff, appellant.

Mosley G. Boyette for defendant, appellee.

Per Curiam.

Appellant expressly abandons all assignments of error except that relating to Exception No. 5, which is untenable. The assignment covering this exception is in this language: “ Jack Blue, witness for the defendant, appellee, testified: 'I was employed by the Moore County Mutual Exchange during the year 1934 as bookkeeper. I was present in January, 1934, when Mr. Miles of the Producers Mutual Exchange of Durham came there.’ Q. Did you hear a conversation between Mr. Miles and Mr. McCrimmon with respect to the Moore County Mutual Exchange handling fertilizer for Mr. Miles during 1934? Objection; overruled; and plaintiff excepts, and this is plaintiff’s Exception No. 5. A. Tes, sir. R., p. 25.” The question alone is not objectionable. The answer is harmless.

Plaintiff discusses the competency of the testimony of the witness as to what the conversation was. But 'the record fails to show exception to the separate question eliciting same or to the statement by the witness of the substance of the conversation, and there is no assignment thereon. Exceptive assignments of error, and none other, are considered on appeal. Rule 19, sec. 3, of Rules of Practice in the Supreme Court, 200 N. C., 824; In re Will of Beard, 202 N. C., 661, 163 S. E., 748; S. v. Bittings, 206 N. C., 798, 175 S. E., 299.

We find

No error.