Bullinger v. Marshall

• Decision Date: 31 January 1874
• Citation: 70 N.C. 520
• Court: North Carolina Supreme Court
• Parties: MICHAEL BULLINGER v. GABRIEL MARSHALL.

70 N.C. 520

MICHAEL BULLINGER

v.GABRIEL MARSHALL.

Supreme Court of North Carolina.

January Term, 1874.

A plaintiff, who, as a witness, relates a conversation he had with the defendant, which is by the defendant contradicted in a material particular, can corroborate his testimony by showing by another witness that he made substantially the same statement to that witness, soon after the conversation occurred, as he made on the trial.

An action for deceit in the sale of a mule--an action ex delicto under the old system--is not within the jurisdiction of a Justice of the Peace, as provided in Art. IV, sec. 33, of the Constitution.

The Court, during the trial, took a recess, when the jury separated and dispersed, the defendant not objecting, nor his Honor charging them not to do so, nor cautioning them against conversing with any one concerning the pending case: Held, to be no ground for a new trial.

Held further, that the defendant being disappointed by a witness who told him the day before the trial that he, the witness, would if examined, give him, the defendant, a good character, and which the witness did not do, is not such a surprise as will entitle the defendant to a new trial.

( Frælich v. The Southern Express Company, 67 N. C. Rep., cited and approved.)

CIVIL ACTION, for deceit in the sale of a mule, tried before Henry, J., at the Spring Term, 1873, of BURKE Superior Court.

On the trial, the plaintiff, as a witness in his own behalf, stated that at the time of making the trade for the mule, the defendant told him the mule was “sound as far as he knew;” but did not tell him the mule had the sweeney and was then well. Plaintiff further stated that he drove the mule to South Carolina; that it limped on the way when travelling over hard ground or when ridden.

The plaintiff detailed a second conversation had with the defendant, after the defendant had sold the mule in South Carolina and returned to his home in Catawba county, in which defendant said that the mule was “sound as far as he knew then,” meaning at the time of the sale,) and adding, “of course, it had had the sweeney.”

Defendant, as a witness, stated that he told the plaintiff in the first conversation, at the time of making the trade that the mule was “sound as far as he knew then, but that it had had the sweeney.”

The plaintiff then offered to prove by another witness, that on the same day, and soon after the second conversation took place, he, the plaintiff, repeated in detail to the witness, both of said conversations, with an account of attendant circumstances, and that the statement made by plaintiff at that time was substantially the same as that given by the plaintiff on the trial. To this the defendant objected, on the ground that the admission of such testimony was in effect allowing the plaintiff to manufacture evidence. His Honor overruled the objection and admitted the testimony. Defendant excepted.

For the defendant, other evidence was admitted, tending to show that the mule was sound at the time of sale and afterwards; and also on the part of the plaintiff showing the contrary.

When his Honor, about the close of his charge to the jury, asked the counsel if they desired any particular instructions, the defendant moved that the plaintiff be non suited, on the ground that the damages demanded in the complaint were only one hundred dollars, and therefore the suit should have been brought in a Justice's Court. Motion refused.

There was a verdict for the plaintiff, whereupon the defendant moved for a new trial, for the reason: That during the progress of the trial, before the testimony was closed, the Court took a recess for dinner; that during said recess, the jury separated and dispersed, as had been usual during the term of the Court, and talked with persons not of the jury. There was no evidence that the jury conversed with any one in relation to the pending trial. One of the jury was in the sheriff's office, and that while there a conversation occurred between other persons, not of the jury, but what was said did not appear, nor did the conversation influence the juror, who happened to be there on other business. Nor did it appear from the affidavits that the minds of any one of the jury were influenced or prejudiced by what they heard, or that there was any attempt to do so on the part of any one.

As another ground for a new trial, the defendant alleged surprise, concerning which his Honor found the following facts: One Wm. Aiken, who was sworn, went to defendant the day before the trial, and told him if he, Aiken, was introduced as a witness, he would give him, the defendant, a good character; that Aiken was examined on the trial, and testified, that the defendant was a ““sharper,” and would take any advantage in a trade. Aiken was in attendance on the Court as plaintiff's witness. Defendant, when examined, said nothing of his interview with Aiken.

The motion for a new trial was overruled by the Court, and the defendant appealed.

Armfield, for appellant , submitted:

An appeal lies to the Supreme Court from a determination in the Superior Court granting or refusing a new trial. See C. C. A., p. 113, sec. 299.

“If any defect of justice happened at the trial by surprise, inadvertence or misconduct, the party may have relief by a new trial.” See Black. Com. p. 387, of book 3d.

A new trial may be ordered for the misbehavior of the witness of the party who asks for it. See Sheppard v. Sutter, Mar. Reports 40 (31.)

“The after declarations of a party shall not be offered for himself to explain his former transactions.”

“One party cannot give in evidence a conversation between himself and a third person, in the absence of the other party, for, as to what the party himself said, it was only his own declaration, and as to what the third person said, it was not on oath. Murphy v. McNeil, Dev. & Bat. 244; see also Ward v. Hatch, 4 Ired. 282; White v. Greer, 5 Jones 47.

This is an action founded on an implied contract. See Black. Com. book 3d, 165. And an implied contract is within the meaning of the word contract in the Constitution of the State, art. 4, sec. 36.

See Town of Edenton v. Wood, 65 N. C. Rep. 399, where it is declared that an action for a penalty incurred by violation of a town ordinance, is “a civil action arising out of a contract.”

Even if the objection to the jurisdiction had not been taken below, as it was in this case, it would be the duty of this Court to dismiss the action upon the ground that the Superior Court had no jurisdiction. See Bacon's Abridg..?? p. 18, sec. 1. title Abatement, (13) and State v. Roberts, 1 Haywood 176; Anonymous, 2 Haywood 115 (275,) and 1st Carolina Law Repository 365 (33.)

Folk, with whom were Busbee & Busbee, contra .

1st. Before the recent act amending the law of evidence, if the credibility of a witness was attacked from the nature of his evidence, from his relation, from bad character, from proof of inconsistent statements, or from imputations directed against him in cross examination, the party in whose favor he was called might prove other consistent statements for the purpose of sustaining him. In this case the testimony given by defendant was in direct conflict with that given by plaintiff, so there was an impeachment on both sides, and each party endeavored to strengthen his testimony by proof of good character. It was but another instance of corroboration to go a step farther, and offer proof of previous consistent statements. March v. Harrell, 1 Jones 329. But it is insisted that parties themselves cannot thus sustain their own testimony. The act making parties competent and compellable to testify in their own cases is substantially a copy of 14 and 15 Vic. ch. 99, amendatory of Lord DENMAN's act, 6 and 7 Vict ch. 85, which recites that the inquiry after truth is often obstructed by incapacities created by the present law; and that it is desirable that full information be laid before the triers, and that ...