Clark v. Clark

• Decision Date: 30 June 1871
• Citation: 65 N.C. 655
• Court: North Carolina Supreme Court
• Parties: JOSEPH D. CLARK, Adm'r., . v. BENJAMIN F. CLARK et al.

65 N.C. 655

JOSEPH D. CLARK, Adm'r., .

v.BENJAMIN F. CLARK et al.

Supreme Court of North Carolina.

June Term, 1871.

1. Where an administrator agreed with two persons that they should buy certain articles of personal property, and give their note to the Administrator therefor, and that the property was to be purchased for the common benefit of all three of the parties, and that each one should pay off and discharge one-third part of the note so given: Held, that upon a suit upon said note by the Administrator, it was competent for defendants to offer parol testimony to prove the agreement between the parties, and the plaintiff under the C. C. P. could recover of defendants but two-thirds part of said note.

2. Under the C. C. P., a defendant may avail himself of any defence that would have been available under the old mode of procedure, either in a Court of Law or Court of Equity.

3. Such an agreement is not illegal, unless it be shown that the creditors of decedent, or his distributees, may be prejudiced by such conduct on the part of the Administrator.

4. If upon the cross-examination of a witness he is asked as to collateral matters, and is examined as to particulars not presented by the issues, the party is bound by the answer, and will not be allowed to go into evidence aliunde, in order to contradict the witness.

(Observations as “to double pleading” under theold system, and C. C. P.)

Civil action for money demand tried before Watts, J., at Fall Term of the Superior Court of NORTHAMPTON County.

The plaintiff declared upon a single bill for twenty-eight hundred and fifty-eight dollars and forty-nine cents, payable to him as the administrator of James Clark, deceased, and executed January 1st, 1866. On said single bill was endorsed a credit of two hundred and two dollars and fifty cents, made December 28th, 1868.

The defendants, in their answer, admitted the due execution of the said single bill, but claimed credit for two payments in addition to the one endorsed on the bill, to wit: one for three hundred dollars, October 23d, 1866, and the other for twenty dollars, November 4th, 1866. They also claimed upon the ground of an equitable set-off, or counter claim, that said single bill should be abated one-third of its original amount and asked that judgment be granted the plaintiff for two-thirds only of the original amount of the single bill, less the three payments before mentioned. The answer was denied by the plaintiff.

The defendant offered to introduce evidence to show that the plaintiff, as the administrator of James Clark, deceased, had a sale of the personal property of his intestate, and that said bond was given for articles purchased at said sale, to wit: corn, fodder, pork, farming utensils, a lot of staves, cotton and household and kitchen furniture, and that at said sale it was agreed between the plaintiff and the defendants, Benjamin F. and William E. Clark, that the defendant, Benjamin, should buy the said property, and all three would use them in common, and each pay for one-third thereof.

The plaintiff objected to the introduction of this evidence, which objection was overruled by the Court. The defendant, Benjamin Clark, testified that he and the plaintiff, with the defendant, William E. Clark, used the said articles in common, and they were purchased in common, and each one was to pay one-third part thereof. That beside the payment endorsed on the bond, he made a payment of three hundred dollars Oct. 23d, 1866, and another of twenty dollars Nov. 4th, 1866.

On his cross-examination the witness said that he and plaintiff did not use any of the said articles in common except the corn, fodder and pork. That plaintiff had received one bed and bedstead of said articles; that he had made out and given to a lawyer for collection, an account against plaintiff for board for himself and horse during the year they farmed together, and used in common the said corn, fodder and pork; that he (the witness) shipped the staves and cotton aforesaid, in his own name, and received the money therefor, and that he has not paid to plaintiff any part thereof.

The plaintiff's counsel asked the witness if he did not forbid the plaintiff to come on the plantation when they were farming together, and it he did not shoot and hit him with seven buckshot, because he went on said plantation? The Court instructed the witness to answer the question or not, as he chose. The witness answered in the affirmative, and went on to explain, that he was plowing in one part of a field on their joint farm, and the colored laborers in another, when the plaintiff rode into the field, dismounted, tied his horse, and went to where the colored laborers were at work; that he (the witness) left his plow, and advanced towards the plaintiff, who met him; that so soon as they met, witness told plaintiff, that as they could not get along together, that plaintiff must leave, or he would shoot him; whereupon the plaintiff opened his bosom and told witness to shoot; when witness did shoot, but did not know the exact number of shot with which he hit the plaintiff. That he shot plaintiff because he had threatened to shoot witness' wife.

The plaintiff's counsel asked the witness if he did not, as soon as plaintiff left his horse, take said horse and go to the house after the gun, with which he shot plaintiff. Witness declined to answer, to which plaintiff excepted.

The plaintiff offered to introduce evidence to show that the explanation made by witness of the shooting, and especially that part of it in which he charged that plaintiff had threatened to shoot the wife of witness, was false. The defendants objected to the evidence, and his Honor sustained the objection, upon the ground that all the evidence about the shooting was collateral matter, and that plaintiff therefore was bound by the answers of witness. Plaintiff excepted.

It appeared that the matters upon which plaintiff's counsel examined the witness, Benjamin F. Clark, touching their personal difference in regard to their farming transactions, and the shooting affair, occurred two years after making the single bill, sued upon, and upon a farm other than the one upon which they were living, when the agreement was made for the purchase of the articles for which said single bill had been given.

The jury for their verdict said, that defendants were entitled to a counter claim of one-third of the single bill, declared on, and find all the rest of the issues for plaintiffs.

Judgment in accordance with the verdict, and appeal by plaintiff.

W. W. & R. B. Peebles for plaintiff .

1. In Equity as well as in Law, parol evidence will not be admitted to contradict or vary a written contract, unless there is an allegation of fraud, mistake, imposition or oppression. Whitfield v. Cates, 6 Jones' Eq. 136; Parker v. Vick, 2 Dev. & Bat. Eq. 195; Howell v. Hawks, 2 Dev. Eq. 258; Clark v. McMillan, 2 C. L. R. 265 (244); Hawkins v. Hawkins, 1 Car. L. R. 495; Gatlin v. Kilpatrick, 1 Car. L. R. 534.

2. When the cross examination is as to matters, which, although collateral, tend to show the temper, disposition or conduct of the witness towards the cause or the parties, the answers of the witness to these matters are not conclusive, but may be contradicted. State v. Patterson, 2 Ire. 346; State v. Kirkman, 63 N. C. 246.

3. Equity will not interfere where there is an adequate remedy at law. The claim of Benjamin Clark against plaintiff was an individual matter, and there is no allegation that the plaintiff is insolvent, and the said Benjamin Clark therefore had his remedy at law. Wells v. Goodbread, 1 Ired. Eq. 9; Glasgow v. Flowers, 1 Hay. 233 (267.)

4. The matter pleaded by the defendant does not constitute either an equitable off-set or counter claim.

The bargain for the purchase of the property, mentioned in the pleadings, was an individual matter, a debt due from Joseph D. Clark, individually, to Benjamin Clark, and cannot be paid out of the assets of the estate of Joseph D. Clark's intestate. It does not appear that Joseph D. Clark ever promised or attempted to use the assets of his intestate to pay his individual debt, but the defendant is seeking to make him do it. Exum v. Bowden, 4 Ire. Eq. 281; Foy v. Alexander, 1 Ire. 340; Bunting v. Ricks, 2 Dev. & Bat. Eq. 130; Powell v. Jones, 1 Ire. Eq. 337; Lemly v. Atwood, et. al. 65. N. C. 46; Wilson v. Doster, 7 Ire. Eq. 231; Smith v. Fortesque, Busb. Eq. 127.D. A. Barnes, for defendant .

PEARSON, C. J.

The defendant, Benjamin F. Clark, in support of an equitable counter claim, alleges: “That the articles for which the note was given, were purchased at a sale by the plaintiff, as administrator of James Clark, on the joint account of himself, plaintiff, and the defendant W. E. Clark, in pursuance of an understanding previously had between them; and said articles were taken and used between them, in a joint business of farming; the proceeds of which farming, were equally divided between them.” The articles consisted of corn, fodder, pork, stock, &c., and were used as the joint property o?? all; and insists that the plaintiff should abate one-third of his demand.

The plaintiff in reply to the answer, says, “that the facts set forth therein are not true.” This...