Gilmer v. Hanks

• Decision Date: 31 January 1881
• Parties: R. S. GILMER v. EDWARD HANKS.
• Court: North Carolina Supreme Court

84 N.C. 317

R. S. GILMER

v.EDWARD HANKS.

Supreme Court of North Carolina.

January Term, 1881.

CIVIL ACTION commenced before a justice of the peace and tried on appeal at Fall Term, 1880, of ALLEGHANY Superior Court, before McKoy, J.

The defence to the note sued on, the making of which is admitted, is, that its execution was obtained by false and fraudulent representations of the plaintiff's agent in regard to the consideration on which it is founded. The defendant says that at the sale of the estate of G. W. Hanks, (adjudged a bankrupt in the district court of the United States in Virginia,) by his assignee, one Jerry Gilmer, the plaintiff's said agent, represented to him that the plaintiff had recovered a judgment against the bankrupt in the superior court of Surry for upwards of two hundred dollars which was a lien upon his land and had also proved the debt in the bankrupt court, and upon this representation contracted to sell and assign said judgment to the defendant for one hundred and seventy-five dollars, and induced him to execute the note, the subject of the action. That before the note became due he went to the county seat of Surry and there ascertained there was no such judgment against the bankrupt to be assigned, but a note only against him.

The following issues were submitted to the jury, to both of which they respond in the negative:

1. Was the execution of the paper writing declared on obtained by fraud or fraudulent representations on the part of the plaintiff or of his agent?

2. Was there an entire failure of consideration?

Judgment for plaintiff, appeal by defendant.

Messrs. Merrimon & Fuller, for plaintiff .

No counsel for defendant.

SMITH, C. J.

Two exceptions only of the appellant are noted on the record, and require consideration; and these are, (1) to the admission of evidence, and (2) to the charge of the court.

The testimony of the defendant and of the said G. W. Hanks who was present when the contract was made, concurred in supporting the allegations in the answer, which were controverted by the plaintiff and in direct conflict with the testimony of his agent and witness. On the cross-examination of the last named witness for the defendant, he was asked if the defendant did not on the same day purchase another note of his from one Felts, which was wholly unsecured? The question after objection was allowed and the witness answered that the defendant did. The evidence is offered to disprove the allegation that the defendant desired or sought any security in purchasing claims against the bankrupt at the time, and that any such false representations as are alleged in superinducing the contract were necessary or in fact made, and to corroborate the plaintiff's denial.

The only objection which can be made to the testimony is its irrelevancy and tendency to mislead. We think it is not obnoxious to this objection and was proper to be considered by the jury in ascertaining the truth of the transaction and the credit to be given to the conflicting testimony. To prove fraud in the execution of...