Bitting v. Thaxton

• Decision Date: 31 January 1875
• Citation: 72 N.C. 541
• Court: North Carolina Supreme Court
• Parties: JOSEPH A. BITTING v. SAMUEL A. THAXTON.

72 N.C. 541

JOSEPH A. BITTING

v.SAMUEL A. THAXTON.

Supreme Court of North Carolina.

January Term, 1875.

Under the C. C. P. there is but one form of civil a tion, and the defendant may set up as a counter-claim, any claim arising out of the transaction set out in the complaint, in favor of the defendant and against the plaintiff, whether the action arises out of a tort, or a contract.

A copy of an account, taken from a me??chants books is only a declaration of the merchant, and is inadmissible in evidence, for the purpose of showing that it converted a quantity of B's tobacco to his own use by selling it to the merchant, and having it credited to his individual account.

It is competent to show that “at the regular time defendant deposited the tobacco with A, he believed A to be solvent,” in order to prove that the defendant acted in good faith.

( Walsh v. Hall, 66 N. C. Rep. 233, cited and approved.)

This was a CIVIL ACTION, tried before his Honor, Judge Wilson, and a jury at Fall Term, 1874, of DAVIE Superior Court.

The plaintiff declared in tort against the defendant as his agent.

It was in evidence on the part of the plaintiff, that they were in 1870, 1871 and 1872, manufacturers of tobacco in the city of Augusta, Georgia, and that the defendant sought employment from them as a travelling salesman during the latter part of October, 1870, and that about 30th of October, 1870, the plaintiffs employed him as such salesman, on the following terms, to wit:

That he was to travel for the house and sell tobacco by sample and report sales to the house, and it was stated that defendant was employed by plaintiffs to avoid their tobacco being sold through commission houses. and to save that expense, but there was no testimony that instructions to that effect were given defendant. That defendant was to receive his expenses and five dollars per day while travelling and selling for plaintiffs.

It was also in evidence that under this agreement the defendant proceeded to Savannah about the 30th of October, 1870, and on reaching that place found six boxes of tobacco at Solomon & Co., and that this with thirty-one other boxes of tobacco, twenty boxes parcel of said thirty-one having been sent by plaintiffs to Fredenburg & Co., and not accepted as coming up to sample, was placed by defendant with one C. A. Reid a commission merchant of Savannah, in November and December, 1870, and March, 1871, and that this tobacco was worth in market at lest $13.50.

It was further in evidence that defendant had about the date he was employed by the plaintiffs, introduced said Reid to plaintiffs, and recommended his credit, and represented him as agent of a flourishing tobacco house of Mocksville, N. C., and that the plaintiffs at that time, in the presence of the defendant, refused to deal with Reid except upon a cash basis.

It was further in evidence, that Reid was generally reported to be insolvent and unreliable, and ultimately failed, and that defendant did not inform plaintiffs of his intention to deposit with Reid, and disclose to plaintiffs that he had so deposited the tobacco with Reid, until the Spring of 1871.

It was further in evidence, that defendant received from the following sums on account of sales of said tobacco, at the dates set opposite to them:

+---------------------------------------+
                ¦1870. November¦15th, the sum of¦$100 00¦
                +--------------+----------------+-------¦
                ¦1870. November¦19th, the sum of¦75 00  ¦
                +--------------+----------------+-------¦
                ¦1870. December¦18th, the sum of¦12 85  ¦
                +--------------+----------------+-------¦
                ¦1870. December¦19th, the sum of¦3 75   ¦
                +--------------+----------------+-------¦
                ¦1870. December¦23rd, the sum of¦25 00  ¦
                +--------------+----------------+-------¦
                ¦1871. January ¦5th, the sum of ¦215 00 ¦
                +--------------+----------------+-------¦
                ¦1871. March   ¦7th, the sum of ¦56 50  ¦
                +--------------+----------------+-------¦
                ¦1871. March   ¦1st, the sum of ¦25 00  ¦
                +--------------+----------------+-------¦
                ¦1871. March   ¦17th, the sum of¦100 00 ¦
                +--------------+----------------+-------¦
                ¦1871. April   ¦19th, the sum of¦50 00  ¦
                +--------------+----------------+-------¦
                ¦1871. April   ¦28th, the sum of¦103 00 ¦
                +---------------------------------------+
                

but that he did not disclose to plaintiffs that he had ever collected a cent from Reid on account of the tobacco until March, 1872, after he had been discharged from their employment; and that in disclosing that matter, defendant expressed great sorrow for having done so, and said that his necessities alone compelled him to do it.

Plaintiffs also offered in evidence the deposition of said Reid, to which was annexed as referred to therein a copy of an account between defendant and Reid, touching the 37 boxes of tobacco. The defendant objected to reading said copy of the account, but admitted the delivery of the tobacco as therein stated, but denied that the heading of said account, to-wit: “Samuel A. Thaxton, in account with C. A. Reid,” was true--and objected to the evidence as not competent to show the entries on the books of Reid. The objection was sustained by the Court to which plaintiff excepted.

1. It was further in evidence, that after the 18th day of February, 1872, when the plaintiffs testified, defendant was discharged from the 1st day of April, 1872, the day defendant testified he quit plaintiff's service, he went to Savannah and there collected six hundred and ninety-four dollars, from divers debtors of plaintiffs, without the knowledge or consent of plaintiffs; and that plaintiffs made repeated efforts to induce defendants to account for and pay over to them the losses they had sustained by him, but on one pretence or another, the defendant failed to do so.

The defendant was then examined on his own behalf, and denied the statements of plaintiff's witnesses as to the terms of the contract, and time when he quit plaintiff's service. Also stated that he acted with the best intentions, &c. The defendant then testified that the value of his services exceeded the amount of money received by him; that his wages exceeded the amount of receipts as agent ($810.00) eight hundred and ten dollars. This witness was asked as to the solvency of C. A. Reid, at the time he deposited with him the 37 boxes of tobacco. Plaintiff objected to the evidence, contending that the witness should be confined to his general reputation, the objection was overruled by the Court, and the witness then stated that at the time of said deposit of tobacco, he believed that he was solvent; he also denied that plaintiff gave him instructious not to deal with Reid, and denied that Bitting, in his presence, refused credit to said Reid. On the cross-examination of the plaintiff, defendant proved and put in evidence 50 or more letters, written by the plaintiffs, and addressed to defendant at various points in the South whilst in their service. On the examination of the defendant, his counsel asked what places he visited in certain months, to refresh his memory, said letters, then in the hands of counsel, were exhibited to him; he then stated he had received them shortly after their date, at the places to which they were addressed, and his counsel then proceeded to read some of the letters to the jury. Plaintiffs objected to this method of presenting the evidence, as being suggestive to the witness of the answers he was to make, and as tending unduly to prop the witness' testimony before the jury, but the Court allowed the defendant to proceed in that manner, and he read some of them on the ground that said letters were in evidence, and contained statements pertinent to the issues in the case, and that the defendant had the right to read them to the jury at some stage of the trial; the others were read after defendant's examination.

The defendant offered in evidence the depositions of W. J. Blair and A. J. Smith, but stated to the Court that certain interrogatories and answers thereto, to-wit, No. _____, in Blair's deposition, and No. _____, in Smith's, were irrelevant, and proposed to omit them. This was objected to by plaintiff, and the Court stated that if plaintiff insisted on reading the whole depositions, they shall be read, but that if the defendant desired to introduce similar evidence, plaintiff could not object to it. Plaintiff insisted and the depositions were read. Thereupon defendant introduced one Peebles, who testified that the services of a travelling tobacco salesman, performing such services as defendant contracted with plaintiffs to perform was worth from $125 to $175 per month and expenses paid. Plaintiff objected to this testimony on the ground that both parties alleged and proved that defendant was to serve plaintiff at a stipulated price; objection overruled on the ground that plaintiffs had insisted on reading similar evidence in the depositions of Blair and Smith. Plaintiff then introduced A. M. Booe and R. M. Payne, who testified that such services were worth $100 per month and expenses. There was...