Buxly v. Buxton

• Citation: 92 N.C. 479
• Court: United States State Supreme Court of North Carolina
• Decision Date: 28 February 1885
• Parties: NANNIE BUXLY v. J. C. BUXTON, Adm'r.

92 N.C. 479

NANNIE BUXLY

v.J. C. BUXTON, Adm'r.

Supreme Court of North Carolina.

February Term, 1885.

CIVIL ACTION tried before Gilmer, Judge, and a jury, at Spring Term, 1884, of DAVIDSON Superior Court.

The facts appear in the opinion.

There was a verdict and judgment for the plaintiff, and the defendant appealed.

No counsel for the plaintiff.

Messrs. Watson & Glenn and Reade, Busbee & Busbee, for the defendant .

SMITH, C. J.

The action is upon a note under seal, for the payment of money, alleged in the complaint to have been executed by the intestate of the defendant, and denied in the answer of the latter. The pleadings are both verified, and the only issue submitted to the jury was, “Is the bond sued on the act and deed of J. N. Shelton, the defendant's intestate?” To which the response was in the affirmative.

Upon the trial, the plaintiff introduced evidence tending to show the signature to the note to be in the hand-writing of the intestate, in the opinion of the witnesses, while other witnesses testified that the intestate admitted his execution of the instrument, and said that he would pay it. The defendant introduced a large number of witnesses who swore that they were well acquainted with the intestate's signature, and that, in their opinion, that on the note was spurious and not his.

The defendant, examined on his own behalf, testiffed to two conversations with the plaintiff, one of which took place when the note was presented to him for payment, some eight months after the intestate's death, and the other some two or three months later, when the note was a second time presented and payment demanded. In the first conversation the defendant denied that the signature was that of his intestate, and that the plaintiff in answer to an inquiry where she got the money for which the note was given, said that she made it by sewing for the girls at the Greensboro college. In reply to a similar inquiry at the next presentation of the note, the plaintiff stated that it was sent to her by her uncle from the west, in a registered letter.

The plaintiff was in court and heard this testimony, but was not examined, nor did she offer any evidence to show the source from which she obtained the money constituting the consideration of the note.

There was evidence that the plaintiff had always resided in the county, and both pro and con as to her needy circumstances.

In the argument of defendant's counsel he insisted that the plaintiff had the power of proving by her uncle's deposition, if such was the fact, that the money was furnished by him to her, and could have summoned the postmaster to prove his delivery of a registered letter, and that she having failed to make this proof when the answer denied the genuineness of the note, it was to be presumed that the denial was true, and this circumstance was to be weighed by the jury against her.

The Court charged the jury that there was no presumption of law to be argued against the plaintiff's statements of the source from which the money was derived, and that they were false, because she had not produced her uncle or the postmaster; that this was a circumstance, and it did not appear that either was living, or who or where they were. To this instruction the defendant excepted.

Besides other instructions, to which no exception was taken, the Court charged further: “The evidence of the intestate's admission when viewing the instrument, that it was the note he gave to the plaintiff, if accepted by the jury as true, is entitled to greater weight than the expression of opinion by witnesses or experts as to the genuineness or falsity of the handwriting. An opinion as to a man's handwriting ought to be received by the jury with caution.” To these directions exceptions were also taken.

The verdict being returned and judgment rendered for the plaintiff, the defendant appealed.

The exceptions appearing in the record are confined to the charge addressed to the jury, and not upon assigned errors in law in the rulings, and a supposed disregard of the act of 1796, which forbids the Judge to express “an opinion whether a fact is fully or sufficiently proven.” The Code, §413.

(1.) There was no error committed in telling the jury, that the failure to produce the evidence of the postmaster and the plaintiff's uncle, to corroborate her last account of the manner in which she came in possession of the money loaned, raised a presumption against the truth of her statement, was not a correct proposition in law, and that the omission was but a circumstance to be considered with other proofs offered, in arriving at a conclusion as to the truth or falsehood of her declaration. Nor was it wrong to remind them of the absence of evidence that the witnesses were living, or who, or where they were. There is no such rule of law to be declared to the jury, and the corroborative evidence has but a remote, if any, bearing upon the issue as to the execution of the note by the intestate. Whether the money was obtained from the one or the other source, or whether any money was loaned to form the consideration of the former, has at most but a slight tendency towards proving the fabrication of the instrument sued on. Being under seal, it imports or rather dispenses with proof of a consideration, unless when some equitable relief is sought.

The plaintiff was not herself examined, and hence no discrediting effect upon her evidence is imparted by the alleged false statement....