Bright v. Marcom

• Decision Date: 26 October 1897
• Citation: 121 N.C. 86,28 S.E. 60
• Court: North Carolina Supreme Court
• Parties: BRIGHT v. MARCOM.

28 S.E. 60

121 N.C. 86

BRIGHT

v.MARCOM.

Supreme Court of North Carolina.

Oct. 26, 1897.

Witness—Transactions with Deceased. In an action by the payee, on a note executed by one since deceased, plaintiff cannot testify that he saw one whose mark purports to be affixed to the instrument, as a witness, make said mark.

Appeal from superior court, Wake county; Boykin, Judge.

Action by A. A. Bright against J. C. Marcom, administrator, to recover on a note. Judgment for plaintiff, and defendant appeals. Reversed.

The plaintiff was introduced as a witness in his own behalf, and offered to testify that he saw Guy Taylor, the witness to the note, make his mark in his name under the word "Witness" upon said note, in the presence ofthe makers of the note (both of whom are dead), at the time the note purports to have been executed; the said witness, Guy Taylor, having also since died. The defendants objected. Objection overruled. Defendants excepted. The plaintiff then testified that, at the time the note purports to have been executed, Guy Taylor was present, and he saw him make his mark as witness thereto. The note, including the signatures of the makers and the subscribing witness, was in the handwriting of plaintiff; and the cross mark appearing upon the note in the name of Guy Taylor, under the word "Witness, " was made in the presence of the plaintiff by said Guy Taylor. There were no distinctive characteristics about the marks; they were simply the ordinary cross marks.

J. C. L. Harris, for appellant

Jones & Boykin, for appellee.

CLARK, J. When an action is brought by the payee upon the promissory note of a deceased maker, the plaintiff is competent to prove the handwriting of the deceased (State v. Maxwell, 64 N. C. 313; Rush v. Steed, 91 N. C. 226; Ferebee v. Pritchard, 112 N. C. 83, 16 S. E. 903; Sawyer v. Grandy, 113 N. C. 42, 18 S. E. 79; Sumner v. Candler, 86 N. C. 71; Hussey v. Kirkman, 95 N. C. 63; Buie v. Scott, 107 N. C. 181, 12 S. E. 198), because knowledge by the witness of the handwriting of the deceased Is no part of the transaction between them; but the same cases hold that the payee would be incompetent to prove that he saw the deceased sign, or the contents of the paper if lost, or the date or circumstances of its execution, since that would be to prove what passed and was transacted between the witness and the deceased. So, also, where the execution of the note is by a cross mark purporting to be affixed by one since deceased, it is not competent for the payee to testify that the cross mark was affixed by the deceased, since that is to testify as to the...