Herring v. Ipock

• Decision Date: 19 March 1924
• Docket Number: 230.
• Parties: HERRING v. IPOCK ET AL.
• Court: North Carolina Supreme Court

121 S.E. 758

187 N.C. 459

HERRING v. IPOCK ET AL.

No. 230.

Supreme Court of North Carolina

March 19, 1924

Appeal from Superior Court, Sampson County; Grady, Judge.

Action by R. E. Herring against H. B. Ipock and J. A. Vinson. Judgment for plaintiff, and J. T. Vinson, executor of J. A Vinson, deceased, appeals. No error.

The plaintiff sued H. B. Ipock and J. A. Vinson, alleging that they composed the firm of the H. B. Ipock Company, for the sum of $1,165, on an open unsecured account for pine lumber. The defendant H. B. Ipock filed no answer, but the defendant J. A. Vinson did file answer denying that he was a member of the H. B. Ipock Company and also denying that he had any part in the purchase of said lumber and was in no wise responsible for said indebtedness. During the pendency of the action, J A. Vinson died, and at the time of the trial his executor, J T. Vinson, was duly made a party to the suit and filed answer denying the plaintiff's claims.

The following issues were submitted to the jury, and their answers to same:

"(1) At the time of the sale of the lumber from R. E. Herring to H. B. Ipock Company, was J. A. Vinson a member of said firm and a copartner with Ipock? Answer: Yes.

(2) In what amount is H. B. Ipock Company indebted to plaintiff? Answer: $1,165 and interest."

Judgment was rendered for plaintiff against defendants. J. T. Vinson executor of J. A. Vinson, deceased, assigned errors and appealed to this court. The exceptions and assignments of error will be considered in the opinion.

Butler & Herring, of Clinton, Jas. H. Pou, of Raleigh, and J. R. Williams, of Clayton, for appellant.

Fowler, Crumpler & Butler and Faircloth & Fisher, all of Clinton, for appellee.

CLARKSON J.

The first assignment of error is to the court below permitting the witness G. A. Waller to answer the following question in the following manner:

"Q. Did you during the time that you were connected with the H. B. Ipock Company, did you and Mr. Ipock or Mr. Ipock in your presence ever draw any draft upon Mr. J. A. Vinson with which to meet your pay roll or to pay for hay or anything or other items connected with the business down here? Answer: I think so. I think he made all drafts on Mr. Vinson for expense accounts."

The controversy in this case is the sole fact: Was J. A. Vinson a partner in the firm of H. B. Ipock Company? This fact can be proved by direct or circumstantial evidence. J. A. Vinson is dead, and J. T. Vinson is the executor of his estate.

C. S. § 1795, is as follows:

"Upon the trial of an action, or the hearing upon the merits of a special proceeding, a party or a person interested in the event, or a person from, through or under whom such a party or interested person derives his interest or title by assignment or otherwise, shall not be examined as a witness in his own behalf or interest, or in behalf of the party succeeding to his title or interest, against the executor, administrator or survivor of a deceased person, or the committee of a lunatic, or a person deriving his title or interest from, through or under a deceased person or lunatic, by assignment or otherwise, concerning a personal transaction or communication between the witness and the deceased person or lunatic; except where the executor, administrator, survivor, committee or person so deriving title or interest is examined in his own behalf, or the testimony of the lunatic or deceased person is given in evidence concerning the same transaction or communication."

Exclusion does not apply when witness has no interest in the result of the action. The interest which disqualifies one from testifying under C. S.§ 1795, supra, is a direct, legal, or pecuniary interest in the event of the action. Helsabeck v. Doub, 167 N.C. 205, 83 S.E. 241, L. R. A. 1917A, 1; In re Gorham, 177 N.C. 275, 98 S.E. 717.

The witness Waller was not "interested in the event." He said, "I was not a member of the H. B. Ipock Company." His testimony was competent.

The next objection was that the question, "It asks for the contents of a draft which was in writing and the draft itself was not produced or its absence accounted for." The drafts about which Willer was speaking, the question as asked, "In your presence ever draw any draft?" The answer was, "I think so," etc. The answer seems to imply knowledge, and its uncertainty could not be prejudicial. It was collateral to the issue and competent.

Davis, J., said in State v. Ferguson, 107 N.C. 846, 12 S.E. 576:

"There are numerous exceptions to the general rule which requires the production of a written instrument as the best and usually only evidence of its contents. Does the note in question fall within any of the exceptions? The note contained no agreement required to be in writing, its contents were purely collateral to the issue, and as was said by the present Chief Justice [[Merrimon], in the case of State v. Credle, 91 N.C. 648: 'It was not intended to be preserved, but to serve a temporary purpose and disappear. * * * It was a loose, casual paper, and what it contained might be proved like any other fact or event. The rule that a written instrument cannot be contradicted, modified or added to by parol proof, has no application to it. It was competent to speak of it and what it contained, without producing it or showing that it was destroyed or lost.' We do not think the note in question comes within the general rule excluding parol evidence of the contents of written instruments, and the evidence should have been admitted. State v. Credle, supra; State v. Wilkerson, 98 N.C. 696; 1 Greenleaf Ev., section 89, and cases cited."

See Ledford v. Emerson, 138 N.C. 502, 51 S.E. 42; Andrews v. Grimes, 148 N.C. 437, 62 S.E. 519; Rabon v. Atlantic, etc., R. R. Co., 149 N.C. 59, 62 S.E. 743.

The next assignment of error was that the court below was in error in permitting the witness C. W. Petty to...