Boggan v. Horne

• Court: North Carolina Supreme Court
• Writing for the Court: Smith, C. J
• Citation: Boggan v. Horne, 97 N.C. 268, 2 S.E. 224 (N.C. 1887)
• Decision Date: 02 May 1887
• Parties: BOGGAN v. HORNE.

2 S.E. 224

(97 N.C. 268)

BOGGAN

v.HORNE.

Supreme Court of North Carolina.

May 2, 1887.

1. Evidence—Opinion of Value—Purchase Price.

In an action to recover possession of a horse claimed under a chattel mortgage, defendant testified that " the horse was worth about $75, " and that he "gave that for him." Held, that evidence of the price paid for the horse was competent as an estimate of value; the actual purchase at the price being an act done in pursuance of an opinion, and imparting greater force to it.

2. Same—Memoranda of Advances.

Defendant offered in evidence a book containing memoranda of advances made him by plaintiff, and testified that some entries were made by the plaintiff, and others by the plaintiff's clerks, upon due authority, and that such entries embraced all the advances which had been made to him by the plaintiff. Held, that all 1', entries were admissible in evidence, being memoranda of advances sworn to and proved independently, and not merely those which were in the handwriting of the plaintiff.

3. Appeal—Erroneous Instruction—Assignment of Error.

An assignment of error, upon motion for a new trial, " for errors in instruction to jury, " is too vague in terms to be entertained.

Appeal from superior court, Anson county.

Haywood & Haywood, for plaintiff.

John D. Shaw, for defendant.

Smith, C. J. This action is to recover possession of a bale of cotton, a horse, and a wagon, claimed under a chattel mortgage made by the defendant to the plaintiff in January, 1882, to secure a note of $75, due on the first day of October thereafter.

The property is described in the deed as "a one-horse wagon, one gray horse, and all my crop of every kind raised by me during the year 1882, " of which the bale formed a part. Under the auxiliary process of claim and delivery provided in the Code, § 331 and following, the articles were seized by the sheriff, and delivered to the plaintiff, who sold them, and appropriated the proceeds to his own use. It is unnecessary to advert to the pleadings further than to say that the defendant alleged that he had paid the secured debt, and discharged the mortgage. The jury, upon issues submitted to them, say (1) that the plaintiff is not entitled to any of the goods seized; (2) that the defendant did not wrongfully detain them; and (3) that the value of the cotton taken is $42.50, of the horse $25, of the wagon $22.50; and that (4) the com-promise and settlement, set out in the complaint as entered into since the commencement of the action, was not made.

Upon the trial the plaintiff took two exceptions to evidence offered and admitted against his objection.

The defendant in his testimony said "the horse was worth about $75, " and that he "gave that for him." The exception is to the latter part of the statement. If authority were necessary, our own ruling upon the competency of such evidence in the case of McPeters v. Hay, 85 N. C. 462, disposes of the question, and we may consider...