Freeman v. Brown

• Court: North Carolina Supreme Court
• Writing for the Court: MANNING, J.
• Citation: Freeman v. Brown, 151 N.C. 111, 65 S.E. 743 (N.C. 1909)
• Decision Date: 06 October 1909
• Parties: FREEMAN v. BROWN.

65 S.E. 743

151 N.C. 111

FREEMAN v. BROWN.

Supreme Court of North Carolina

October 6, 1909

Appeal from Superior Court Bertie County; Guion, Judge.

Action by V. H. Freeman against Josiah Brown, as administrator of Josiah Freeman, deceased. Judgment for plaintiff, and defendant appeals. Affirmed.

It is competent under certain limitations to use a deposition in a case other than that in which it was taken.

The plaintiff, after averring the death of Josiah Freeman intestate, and the qualification of defendant Brown as his administrator, alleges that the plaintiff is a son of the intestate, who for many years prior to his death was in feeble health and unable to care for himself; that he, the plaintiff, lived with his father at his request from the time he became of age, in 1887, to 1907; that his father promised him that, if he would live with him and care for him and look after his farm, he would compensate him, the plaintiff, by giving him his farm of about 69 acres at his death. The plaintiff alleged that he lived with his father to his death that he cultivated the farm, looked after and attended to all of his father's business, and cared for and looked after the wants of his father and mother during their lives; that the intestate survived his wife many years, and was very feeble and unable to care for himself. The other heirs at law were made parties on their petition, and a joint answer was filed by them and the administrator, in which they denied all the material allegations of the complaint, pleaded the statute of limitations; that plaintiff, as a member of the family, received all the rents and profits, converted to his own use all the personal property of his father, and has never accounted therefor; that plaintiff is indebted to the estate in a large sum, and prayed that an account be taken by a referee. The following issues were submitted by his honor:

"(1) Did Josiah Freeman at the time the plaintiff, V. H Freeman, arrived at the age of 21 years, request the plaintiff, V. H. Freeman, to remain with him at his home and care for him and look out for his business, and that if he, the said V. H. Freeman, would do so, he would at his death compensate plaintiff for his services and attention by giving plaintiff his farm on which he lived?

"(2) If so, is plaintiff's action barred by the statute of limitations?

"(3) Is defendant's action upon his counterclaim barred by the statute of limitations?"

The jury made these responses: "Yes," to the first issue; "No," to the second issue; and "No, as to the three years next preceeding the commencement of this action. Yes, prior thereto." Upon the verdict his honor signed judgment adjudging the taking of an account necessary, ordering a compulsory reference, and appointing a referee to state the account between the parties in accordance with the verdict, requiring a report from referee and retaining the cause for further orders. The defendant appealed.

Winston & Matthews and W. R. Johnson, for appellant.

Winborne & Winborne, for appellee.

MANNING J.

The form of the issues submitted by his honor, to which no exception was taken by the appellants or other issues tendered by them, renders it unnecessary to consider several exceptions appearing in the record and pressed upon our attention. The first issue was to determine the existence of an express contract, as set forth in that issue. The evidence of the plaintiff himself, tending to show services performed by him for his father from which the jury could imply a contract and fix their value as upon quantum meruit, was immaterial, and we cannot see certainly, as no part of his honor's charge is sent up in the record, that the defendants were prejudiced by the admission of it. If this evidence were material or pertinent to any issue, its competency would present a difficult question for solution under the decisions of this court. Dunn v. Currie, 141 N.C. 123, 53 S.E. 533; Stocks v. Cannon, 139 N.C. 60, 51 S.E. 802; Davidson v. Bardin, 139 N.C. 1, 51 S.E. 779, and cases cited. It has been held in numerous cases decided by this court and other appellate courts that neither the admission or exclusion of immaterial evidence--immaterial in the determination of any issue to be found by the jury, and it cannot be seen by the appellate court that the appellant was prejudiced thereby--will constitute reversible error. In re Thorp, 150 N.C. 487, 64 S.E. 379; Davis v. Thornburg, 149 N.C. 233, 62 S.E. 1088; Griffin v. Railroad, 138 N.C. 55, 50 S.E. 516; Jennings v. Hinton, 128 N.C. 214, 38 S.E. 863; Collins v. Collins, 125 N.C. 98, 34 S.E. 195. This disposes of the first six exceptions of the appellants, all of which were taken to the evidence of the plaintiff of the purport above stated.

The seventh exception is thus stated in the record: "Here the plaintiff offers in evidence the deposition of Hattie Freeman. The defendant objects and moves to suppress the deposition for that the same was taken before there was issue joined in the cause, in that the answer had not been filed at the date of taking the deposition. Motion denied and objection overruled. Defendant excepts." This exception cannot be sustained. The motion to suppress the deposition ought to have been made at latest before the trial was entered upon. Section 1647, Revisal 1908; Ivey v. Cotton Mills, 143 N.C. 189, 55 S.E. 613. It is not required by ...