Pursell v. Long, 52 N.C. 102, 7 Jones 102 (1859)

Dec. 1859 · Supreme Court of North Carolina

52 N.C. 102, 7 Jones 102

Q. T. PURSELL v. JOHN D. LONG.

A misdescription of a place, in one small particular, in a notice to take depositions, will not be fatal if there be other descriptive terms used in the notice, less liable to mistake, by which such place may be identified.

What was said by defendant to one who was sent by him, not as an agent to> contract, but merely as a messenger to call in the plaintiff, that defendant might close a bargain then being negotiated between them, is not competent evidence of the contract entered into by the parties.

This was an action ON tub case for a deceit and false warranty in the sale of tobacco, tried before DicK, J., at the last Fall Term of Rockingham Superior Court.

The plaintiff declared in two counts: first, a deceit, and secondly, for a false warranty in the sale of one hundred boxes of manufactured tobacco. The tobacco was delivered in August, 1857, and to prove that it was rotten, in the fall and winter of that year, plaintiff proposed to read the deposition of one W. J. Totten, of Georgia. The notice was to take the depositions of L. T. "Watkins, N. Cobb and others, in the office of W. T. Holderness, No. 132 Broad street, Columbus, Georgia, by W. T. Iloklerness, a commissioner and notary public, on the 15th day of March, 1859. The deposition was taken, as declared in the caption, by William T. ITolderness, commissioner and notary public, on the 15th day of March, 1859, at his office No. 128, Broad street, Columbus, Georgia. The defendant objected to the reading of this deposition, as he did not appear, and no one for him, at the taking thereof. The Court admitted the deposition to be read.

The plaintiff introduced a witness, Dugger, who testified that in Jnne, 1857, he was with the plaintiff, at defendant’s tobacco factory, when and where the plaintiff proposed to buy one hundred boxes of tobacco from defendant, and proposed to give for one hundred boxes of a certain quality of tobacco, the cheapest and lowest quality, twenty cents per pound, if defendant would give him six 'months credit, and warrant the said tobacco to be sound and to keep; that defendant asked twenty-two or twenty-two and a half cents for the tobacco, and said that he had never warranted any tobacco, and would not warrant any he should ever sell. Whereupon the plaintiff said that would end the matter; that he would not buy tobacco unless it was warranted; that witness and plaintiff then started away; that one Eice, as they were about going off, came out of the factory to where they were and said that defendant had agreed to accept his offer; that he and plaintiff went back into the factory, when plaintiff said to defendant, “I suppose you have agreed to accept my tferms”; to which defendant replied he had; that plaintiff and defendant then went into defendant’s office, and he heard nothing inore.

James, a witness for the defendant, testified that he was present in June, 1857, when plaintiff and the witness, Dugger, called at the defendant’s tobacco factory in Caswell; that they talked about different sorts of tobacco, and different prices; that plaintiff said he wanted a low quality of tobacco; that defendant showed plaintiff a low quality of lug tobacco, which he had put up and branded, “ J. Scott, Yanceyville, N. C.;” that plaintiff said he wanted one hundred boxes of tobacco answering this description, and would take that much if defendant would take twenty cents per pound, warrant it to keep, and give him six months credit; that defendant said be had never warranted any tobacco, and never would, and that he must have twenty-two and a half cents for it; that plaintiff started off, he'and the defendant differing about the price; that witness liioe went out after plaintiff; that plaintiff and Rice came back to the factory together, but that the witness Dugger, did not return to the factory; that- when plaintiff and Rice came back to the defendant in the factory door, defendant said to plaintiff, I have agreed to take your offer of twenty cents for one hundred boxes of the J. Scott tobacco; that the parties then agreed on the six months credit, and the price, twenty cents, nothing being said about a warranty. The tobacco was to be put up in the month of July, 1857, and defendant was to give plaintiff notice when the tobacco was ready; that he, witness, superintended the putting it up, and that it was sound, and put up in good order; that defendant gave notice, and plaintiff came about the middle of August, 1857, examined the tobacco by having several boxes opened, and asked the witness JRiee, and the defendant, if they thought it would keep, to which they replied they thought it would; whereupon, the plaintiff was satisfied, and gave his note, and the hundred boxes of tobacco were sent to the Haw River depot by the defendant.

The defendant introduced the witness, Diee, the superintendent of his tobacco factory, who testified that after plaintiff had started from the factory, in J une, 1858, he followed the plaintiff and the witness Dugger, and said to plaintiff that defendant had agreed to take the twenty cents, or to accept his offer for the J. Scott tobacco, but did not recollect which mode of expression he used. But he recollected that as he returned to the factory, plaintiff gave him instructions as to how he wanted the tobacco put up; that witness Dugger, remained in the buggy holding the horse, and did not come back into the factory with him and plaintiff; that as soon as he came into the factory, he went into another room to his business, and did not hear what passed between the parties.

The defendant then offered to prove by the witness, Dice, the instructions he gave him, when he went out to tell plaintiff to come back, and these instructions were given in the following 'conversation. The said witness, Rice, as plaintiff went off, asked defendant what plaintiff liad offered him for the J. Scott tobacco; the defendant said twenty cents; that witness said to defendant that they had already picked a large quantity of this tobacco, that he thought the defendant had better take the twenty cents for a hundred boxes of said tobacco; whereupon, defendant told him to follow plaintiff, and sa}1- to him that he would take twenty cents for one hundred boxes of that kind of tobacco; and this was the only knowledge or instructions, the witness, Rice, had, when he went out after plaintiff; but this evidence was objected to by the plaintiff, and excluded by the Court. Exception by defendant.

"Verdict for plaintiff. Appeal by defendant.

Moreheacl, for plaintiff.

Hill, for defendant.

Battle, J.

"W-e concur in the opinion given by his Honor, in the Court below, upon both the questions, presented by the defendant in his bill of exceptions. The deposition of Mr. Totten was properly admitted. The place at which the defendant was notified, it would be taken, «pas indicated by several marks, in one only of which, and that not likely to mislead, was there a mistake. In a town not larger than Columbus, Georgia, the office of a particular gentleman, wffio is a commissioner and notary public, may be' easily found, though it is described as being at 132, on a certain-street, when it is in fact at No. 128, on that street. Had it been proved that the commissioner had two offices, and that the defendant was thereby misled, the deposition ought to have been rejected. In the case of Taylor v. Alston, 1 Hay. Rep. 381, where the notice was .that the deposition -was to be taken, at Halifax Court-House, Yirginia, it was proved by a witness, that the house of Manning, where it was taken, stood eighty yards distance from the Court-House. In the other case, relied on, of English v. Camp, 1 Hay. 358, the deposition was clearly inadmissible, because it did not appear that it was taken at any particular place in ilie county specified in the notice. . Had the proper place been mentioned, and the name of the county only omitted, the deposition might have been received, where there were other circumstances to identify the county, and prevent a mistake as to the place; Owens v. Kinsey, 6 Jones’ Rep. 38. A case more nearly resembling the present, than either of those referred to by the defendant’s counsel, is that of Elmore v. Mills, 1. Hay. Rep. 359. There, the notice was to take depositions at the house of John Archelands Elmore, and the depositions appeared to have been taken at the house of John Elmore, and yet they wore allowed to be read, the Court holding that the presumption was, that the names were those of the same person. It cannot be doubted that the depositions would have been rejected if it had been proved that John Archelands Elmore and John Elmore were different persons. In cases of much more importance than the reception or rejection of depositions, it has been often decided, that the misdescription of a person or thing, in one particular will not be fatal if the person or thing be sufficiently identified in other particulars in which there is less probability of a mistake. For instances of such harmless misdescription, both in deeds and wills, see Miller v. Cherry, 3 Jones’ Eq. Rep. 24; Lowe v. Carter, 2 Jones’ Eq. 383; Joiner v. Joiner, ibid 68.

The other question is also clearly against the defendant.— The witness, Rice, was manifestly not the agent of the defendant to enter into'a contract with the plaintiff, for the sale of the J. Scott tobacco, but was merel}r a messenger sent out by the defendant to recall the plaintiff, in order that he, the defendant, might close a contract with him. The testimony offered to show what the defendant said to that witness, in the absence of the plaintiff, was, therefore, inadmissible, and. properly rejected.

PeR CüRIAM,

Judgment affirmed.