Howerton v. Lattimer

• Decision Date: 31 January 1873
• Citation: 68 N.C. 370
• Parties: WM. H. HOWERTON v. C. H. LATTIMER.
• Court: North Carolina Supreme Court

68 N.C. 370

WM. H. HOWERTON

v.C. H. LATTIMER.

Supreme Court of North Carolina.

January Term, 1873.

Testimony as to transactions which took place between the defendant and an agent, since deceased, is admissible evidence in a suit brought by the principal against such defendant. Especially so, if the acts and agreements of the agent were afterwards communicated to the principal and by him assented to.

Where a plaintiff requests the Judge, on a trial in the Court below, to instruct the jury that the defendant must support his defence, by a preponderance of testimony; and instead of so doing his Honor tells the jury that they must judge of the weight of the evidence, and if they believed the testimony of the defendant, they should find for him: Held, to be no error.

CIVIL ACTION, tried at the Fall Term, 1872, of ROWAN Superior Court, before Cloud, J.

The following is, in substance, a statement of the case by counsel, and sent up with the transcript of the record. The action was brought to recover the value of board supplied to defendant and his clerk, from 12th January, 1859, to 18th March, 1860.

On the trial below the account was admitted, but the defendant alleged that it had been settled by “an accord and on satisfaction thereof, with one Thos. Howerton, as the only authorized agent of the plaintiff.”

In support of this allegation the defendant testified that sometime in 1858 the plaintiff came to his store and requested him to let his father, Thos. Howerton, have such articles as he might apply for, and to charge the same to the plaintiff. In consequence of this request he let Thos. Howerton have a large amount of merchandise at different times, down to 1st May, 1860. That at the time the account was opened, Thos. Howerton was keeping a boarding house as the agent of the plaintiff. Soon after Thos. Howerton approached the defendant, the witness, and solicited him to board with him, and bring one of his clerks also to board at his house, stating that if he, the defendant, would do so, he would accept in payment of the board bill a credit of one half thereof, upon his individual account, which he owed the defendant, and the other half upon the account made by him as the plaintiff's agent. Before the defendant testified to this conversation, it was admitted that Thos. Howerton was dead; and the plaintiff objected to the admission of any evidence of a conversation, or of any transaction with the deceased. On the part of the defendant it was stated that evidence would be offered tending to show that the conversation alluded to had been, by defendant, communicated to the plaintiff, and that he had assented to the arrangement. The defendant further stated that in pursuance of such arrangement, he and his clerk did board with Thos. Howerton, agent as aforesaid, as detailed in the account sued upon.

The defendant was further permitted to state, after objection by plaintiff, that on the 29th January, 1859, there was a settlement between himself and Thos. Howerton, agent of the plaintiff, in which, one-half of the bill for board was credited on the individual account of Thos. Howerton, and the other half upon the account against plaintiff himself. That shortly thereafter he showed the plaintiff the statement of this settlement, and explained to him the agreement had with his father, and agent; that he, the plaintiff, made no objection to the arrangement, only suggesting that in future the goods furnished to his father, Thos. Howerton, should be charged to him as agent of the plaintiff, giving as a reason, that he, the plaintiff, might purchase goods at defendant's store for his own family, and that it might produce confusion if both accounts were kept alike. Plaintiff objected to the introduction of testimony relating to any transaction with Thos. Howerton prior to the 12th January, 1859. Objection overruled, and the plaintiff excepted. Defendant further testified, that on the 1st May, 1860, he had a final settlement with Thos. Howerton, in which the board bill was credited in accordance with the agreement, and that for the balance due by plaintiff to defendant, the said Thos. Howerton gave a note signed by himself as agent. To this evidence the plaintiff objected. Objection overruled, and plaintiff excepted.

The plaintiff then offered to read in evidence certain affidavits made by one Whitted, a witness for defendant, the affidavits being made for a continuance of the cause at a preceding term, and which, it was alleged, contained contradictory statements. Defendant objected, and the objection was sustained by ...