Bonner v. Stotesbury

• Decision Date: 12 September 1905
• Citation: 139 N.C. 3,51 S.E. 781
• Parties: BONNER. v. STOTESBURY et al.
• Court: North Carolina Supreme Court

139 N.C. 3

51 S.E. 781

BONNER.

v.STOTESBURY et al.

Supreme Court of North Carolina.

Sept. 12, 1905.

1. Witness — Competency — Transaction with Decedent.

Under Code, § 590, providing that a person interested shall not be examined as a witness against the administrator of a decedent as to a transaction with decedent, one is not disqualified as a witness for plaintiff administrator, though he may be liable over to defendant if plaintiff succeeds.

2. Appeal—Reversal.

A nonsuit, to which plaintiff was driven by erroneous exclusion of evidence, will not be sustained on the ground that he had stated no cause of action, and, if he had, it was barred by limitations, where plaintiff had moved to amend his complaint, and the court intimated that it would allow it, if his evidence was sufficient

3. Limitations—Fraud.

The provision of Code, § 155 (9), declaring a three-year limitation for actions for relief on the ground of fraud or mistake, that the cause of action shall not be deemed to have accrued till discovery by the aggrieved party of the facts constituting such fraud or mistake, applies only when the "ground" of the action for relief is fraud or mistake; and the statute runs from the discovery of the facts constituting the fraud or mistake, and not from the discovery by a party of rights theretofore unknown by him.

4. Appeal—Pleadings—Amendment.

Amendment of the complaint will not be allowed on appeal, where the amendment would present a case substantially different from the one tried, and raise a question of law not involved in the appeal.

Appeal from Superior Court, Hyde County; Ward, Judge.

Action by Selby Bonner, administrator, against C. A. Stotesbury and others. From a judgment of nonsuit, plaintiff appeals. Reversed.

Plaintiff alleges that his intestate deposited with one Benson a certain sum of money subject to her order, and that from time to time Benson on her demand made payments to her, having at her death in his hands as her depositary a balance of $260; that immediately after her death, and presumably in September, 1898, defendant C. A. Stotesbury received said money from Benson without having taken out letters of administration, and immediately paid over to R. B. Stotesbury, his testator, a considerable portion of the same, the amount not being known to plaintiff. Plaintiff also alleges the death of Mary E. Bonner and the qualification of plaintiff, on the 18th day of February, 1905, as her administrator, and the death of R. B. Stotesbury in 1904 and the qualification of the defendant C. A. Stotesbury as his executor. Defendant, in his answer, denied the allegations of the complaint and pleaded the statute of limitations. At the trial the court submitted two issues to the jury, which are as follows: "(1) Are the defendants indebted to the plaintiff, and, if so, in what sum? (2) Is the plaintiff's claim barred by the statute of limitations?" Plaintiff introduced C. F. Benson as a witness, and asked him what funds of Mrs. Bonner he had in his hands at her death. Defendants' counsel objected, and the witness then stated, in answer to a question of defendants' counsel, "that he knew nothing about the funds, except what Mrs. Bonner told him and put in his hands." The objection was sustained, and plaintiff excepted. Plaintiff's counsel also asked the witness if he had paid any money to C. A. Stotesbury since the death of Mary E. Bonner, plaintiff's intestate. The question, on objection by defendants' counsel, was excluded by the court, and plaintiff excepted. The witness was then asked by plaintiff's counsel if Mary E. Bonner had deposited any money with him prior to her death, and, if so, how much? This question was also excluded, on objection by defend-ants' counsel, and plaintiff excepted. It was stated by counsel in this court, and not denied, that the plaintiff moved in the court below to amend his complaint by alleging a conspiracy between Benson and the Stotesburys to defraud the estate of plaintiff's intestate out of said fund so deposited with Benson, and the court stated that it would first hear the testimony of plaintiff and then pass upon the motion to amend. In the brief of defendants' counsel it is admitted that "the court permitted the plaintiff to amend his complaint." We take it that this admission refers to what the judge said, as stated by plaintiff's counsel, when the motion to amend was made. No amendment was actually made in the superior court The court intimated that it would charge the jury that if they believed the evidence, they should answer the first issue "No, " and the second issue "Yes." Plaintiff thereupon, in deference to the intimation, submitted to a nonsuit and appealed

S. S. Mann, for appellant.

H. S. Ward and Aydlett & Ehringhaus, for appellees.

WALKER, J. (after stating the case). It was admitted here that the court excluded the testimony of the witness Benson as being incompetent under section 590 of the Code. In this, we think, there was error. Benson was not asked to testify against the representative or assignee of a dead person as to any transaction or communication between himself and the person deceased, but in favor of such a representative, and the transaction between him and Stotesbury was, of course, confined to living persons. The proposed testimony, as to the transactions between him and Mrs. Bonner, was offered by the party to the suit who represented the dead person. Such testimony does not fall within the inhibition of section 590 of the Code. That statute was intended to protect the deceased person's representative or assignee, who is suing or being sued in the action, and for the reason that the living party to the transaction or communication, who is a party to or interested in the event of the action, or the person under whom he claims, should not, in all fairness, be permitted to speak concerning it, when the other party, who is dead, cannot be heard in reply....