Clements v. Rogers

• Decision Date: 31 October 1886
• Citation: 95 N.C. 248
• Court: North Carolina Supreme Court
• Parties: A. K. CLEMENTS v. M. A. ROGERS, Extrx., et als.

95 N.C. 248

A. K. CLEMENTS

v.M. A. ROGERS, Extrx., et als.

Supreme Court of North Carolina.

October Term, 1886.

OPINION TEXT STARTS HERE

CIVIL ACTION, tried before Clark, Judge, and a jury, at October Civil Term, 1885, of WAKE Superior Court.

The defendants appealed.

The facts appear in the opinion.

Messrs. Geo. V. Strong and A. M. Lewis, for the plaintiff .

Mr. Daniel G. Fowle, for the defendants .

MERRIMON, J.

The motion to dismiss the appeal, upon the ground that the order appealed from is interlocutory and an appeal does not lie at the present stage of the action, cannot be allowed. The action involves the settlement of an alleged agency that embraced numerous and important pecuniary transactions, running through many years. The defendants allege that there was a settlement of all matters embraced by that agency in July, 1875, and that the principal then executed to the agent, who was the testator of the defendant executrix, an acquittance and discharge as to all liabilities on his part, as agent, prior to that time. This the plaintiff denies, and thus an issue is raised.

The defendant executrix admits, however, that the agency mentioned continued after the alleged settlement, for several years, and concedes that an account of transactions embraced by it since the time of the alleged settlement ought to be taken, and she avers her readiness to account in that respect. The action was tried upon the issues raised by the pleadings, and the jury found by their verdict, that there had not been any such settlement, and that the principal did not execute an acquittance and discharge to the agent, as alleged by the defendants. Thereupon, the Court entered an order directing a referee to take, state and report, an “account of the matters embraced in the complaint.” From this order the appeal was taken.

It is settled by many decisions, that an appeal lies from such an order, upon the ground that if the discharge or release shall be established, then the plaintiff will not be entitled to an account, and the action will be at an end. It would be unjust and vexatious to compel a party to account, if he had already done so. The defence puts in issue the cause of action. And an account will not be directed, although the defendant admits that an account of transactions subsequent to the alleged settlement and discharge is necessary. This latter rule of practice seems to rest upon the ground, that the whole account demanded by the action should be taken at the same time, on the score of orderly procedure, convenience and economy. Price v. Eccles, 73 N. C., 162; Smith v. Barringer, 74 N. C., 665; Sloan v. McMahon, 85 N. C., 296; Commissioners v. Raleigh, 88 N. C., 120; Humble v. Mebane, 89 N. C., 410.

In the lifetime of Mary Ann Rogers, deceased, she had very considerable and important business transactions. The testator of the defendant executrix, John W. Rogers, had been her business and “financial” agent for about thirty years; in him she greatly confided, and he had charge of her business matters generally. The question at issue was, whether or not she and her agent had a settlement of his agency in July, 1875, and she then executed to him a release and discharge as her agent. The defendants alleged the affirmative of this question, the plaintiff the negative, and he averred moreover, that if there had been any such settlement, and such release and discharge, the same were fraudulent and void, and procured by the fraudulent and undue influence of the agent. On the trial, a witness for the defendants was asked, and he answered questions put to him on the examination in chief as follows:

“Question: State what was the result of the settlement; that is, what amount was ascertained to be in the hands of John W. Rogers, as agent, in the way of notes or other property, and what amount, if any, was John W. Rogers found indebted to her? Answer: About $3,500 in notes and bonds, considered good, was found in his hands, as her agent; he gave his note to her in the settlement, about $900, for amount due Mary Ann Rogers from Leslie, Rogers & Rogers for turpentine boxes. Question: What period of time did the settlement embrace? Answer: From 1850 to 1875.”

On the cross-examination of the same witness, he was interrogated, and answered as follows:

“Question: In regard to this turpentine transaction that you spoke of in your examination in chief, and for which John W. Rogers gave Mary Ann Rogers his note for about $900, please state if John W. Rogers did not then and there tell Mary Ann Rogers that he would pay her one third of that debt, provided that she would release him, and that the other two parties had not paid and were not able to pay, and that you objected to her doing so? Answer: John W. Rogers did say that he would pay her one-third, if she would acquit him; said that as to Leslie, one of the partners, nothing could be got out of him; she asked me about releasing Mr. Rogers, and I told her I would not do it.

Question: State whether you had not been informed by J. W. F. Rogers, one of the partners in the turpentine transaction previous to that time, that the rent of the turpentine boxes had been paid to John W. Rogers, and if that was not the reason you objected to the release above mentioned? Answer: I had a conversation, but do not recollect whether it was before or after the settlement; J. W. F. Rogers did in substance state that the rent had been paid. This was not the reason I objected to the release.”

The...