Gregg v. Mallett

Decision Date19 October 1892
Citation15 S.E. 936,111 N.C. 74
PartiesGREGG et al. v. MALLETT et al.
CourtNorth Carolina Supreme Court

Appeal from superior court, Edgecombe county; GEORGE H. BROWN Judge.

Action by Gregg, Garvey & Co. against Mallett & Mehegan on account of a sale of grain. From a judgment for plaintiffs defendants appeal. Affirmed.

In a case where there were but two witnesses for defendants, and testimony of one M. presented fully plaintiffs' claim, it was not error, as giving undue prominence to one witness, to charge that, if the jury believed M., they should find for plaintiffs.

G. M T. Fountain, for appellants.

John L Bridgers, for appellees.


The defendants excepted to the admission in evidence of the deposition of Joseph Gregg, because it does not appear that Philip A. Hoyne, the commissioner who certified the same, is of "kin to neither party in the action." The contention of defendants is that while objections as to insufficiency of notice and the like must be supported by evidence on the part of the party objecting, yet it should appear either in the commission, or in the return of the commissioner, or in some application for the issuing of the commission, that the commissioner is of kin to neither party to the action; that as, by section 1357 of the Code, this disqualification is plainly fixed, it should appear in the proceeding that the commissioner was not disqualified to act as such. But by the general rules of evidence certain presumptions are continually made in favor of the regularity of proceedings and the validity of acts. It presumes that every man in his private and official character does his duty, until the contrary is proved. It will presume that all things are rightly done, unless the circumstances of the case overturn this presumption. Thus it will presume that a man acting in a public office has been rightly appointed; that entries found in public books have been made by the proper officer; and like instances abound of these presumptions. Bank v. Dandridge, 12 Wheat. 64. In the present case the commissioner to take depositions, having been appointed by the court, is presumed to be duly qualified to execute his commission until the contrary is shown. The defendants objected to a large portion of the deposition as irrelevant and incompetent, as it related to transactions and communications between the plaintiffs and one E. V. Murphy, who is not a party to the action. The action was brought by plaintiffs to recover the alleged balance due them from defendants upon a sale of corn. The defense set up was that the defendants bought the corn from E. V. Murphy as his own, and without knowledge or notice that said murphy was not the principal in the sale to them, and that the purchase was made by them to secure a debt owing them by said Murphy. The testimony of Murphy in behalf of the plaintiffs was that he was acting as broker for plaintiffs, and that, while the name of his principal was not disclosed, the sale was made by him as a broker, and not upon his own account, and that this fact was made known to defendants before the sale. The testimony objected to was competent in corroboration of Murphy, and the presiding judge instructed the jury to that effect when the objection was made, though he did not call their attention to it again in his charge. That portion of the deposition referring to transactions with Lewis was ruled out.

There was a direct conflict of testimony between the witnesses Murphy, for the plaintiffs, and Lewis, for defendants. It was entirely competent for plaintiffs to sustain and streng then the testimony of Murphy, even in anticipation of the testimony to be offered by defendants; and, whatever restrictions and modifications may be recognized elsewhere there is no room for further contention in the courts of this state as to...

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