Knight v. Killebrew
| Citation | 86 N.C. 400 |
| Court | North Carolina Supreme Court |
| Decision Date | 28 February 1882 |
| Parties | W. H. KNIGHT, Ex'r., v. C. L. KILLEBREW. |
OPINION TEXT STARTS HERE
CIVIL ACTION, tried at Fall Term, 1881, of EDGECOMBE Superior Court, before Gilmer, J.
The defendant appealed from the judgment below.
Messrs. Battle & Mordecai, for plaintiff .
Messrs. Walter Clark and A. W. Haywood, for defendant .
The plaintiff, as executor of R. R. Dupree, sues upon the following receipt given by the defendants: Received of R. R. Dupree nine hundred and seventy-two dollars and seventy-six cents in notes against R. R. Williams, bearing interest from date, the 4th day of January, 1876, (signed by C. L. Killebrew, and dated Feb'y 26th, 1876), and alleges that the defendant undertook to collect and account for the claims; that the debtor was solvent and the notes have been or could have been collected, and that upon demand of the plaintiff the defendant has refused and failed to account therefor, or to pay any money to him. In his answer the defendant admits his executing the written instrument, the demand, and refusal alleged; denies (repeating the very words of the complaint) “that the said notes were delivered to him with the understanding, expressed or implied, that he should collect the same and account for the proceeds, either to the said R. R. Dupree, during his life-time, or at his death to his personal representative; and sets up, as a defence, that the plaintiff ought not to have or maintain his action aforesaid against him, because plaintiff's cause of action, on the claim alleged in said complaint, did not accrue within three years next preceding the issuing of the summons in the cause by the plaintiff, and his right of action aforesaid is barred.”
The cause was heard by consent before the judge without a jury, and it was conceded that the notes mentioned in the receipt were drawn payable to the testator, while the defendant denied that an accountable agency was thus constituted for their collection.
On the trial the defendant offered himself for examination, as we must infer from the reason given by His Honor for its exclusion (for the proposed evidence is not stated), to prove facts attending the transaction and connected with the execution of the writing, but was not permitted to testify under the inhibition of section 343 of the Code.
It is not necessary to decide the point whether the introduction of the receipt in evidence, as the declaration of the defendant in regard to a transaction or communication between the parties, opens the door for the explanatory testimony of the defendant under the concluding and exempting clause of the proviso, and the construction of its terms, intimated by BYNUM, J., in Murphy v. Ray, 73 N. C., 588, since it is a sufficient answer to the objection that it does not appear what the rejected evidence was, and we cannot see that it was at all pertinent or material. It is a settled rule that error cannot be assigned in the ruling out of evidence unless it is distinctly shown “what the evidence was in order that its relevancy may appear, and that a prejudice has arisen from its rejection.” Whitesides v. Twitty, 8 Ired.,...
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State v. Lane
...Will, 163 N. C. 464, 79 S. E. 977; State v. Rhyne, 109 N. C. 794, 13 S. E. 943; Sumner v. Candler, 92 N. C. 634; Knight v. Killebrew, 86 N. C. 400. We must know what the answer would have been, before we can pass upon the competency or relevancy of the evidence. Besides, as it now appears t......
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State v. Lane
... ... homicide ... Exception ... 7. The question put to the witness David Knight, who was ... deputy sheriff, as to finding keys at the place of the ... homicide belonging to deceased, was not answered, nor was the ... nature ... 464, 79 ... S.E. 977; State v. Rhyne, 109 N.C. 794, 13 S.E. 943; ... Sumner v. Candler, 92 N.C. 634; Knight v ... Killebrew, 86 N.C. 400. We must know what the answer ... would have been, before we can pass upon the competency or ... relevancy of the evidence. Besides, ... ...
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Baker v. Norfolk & S. R. Co
...proposed testimony, which is ruled out must appear before we can see that any error has been committed by the court. Knight v. Killebrew, 86 N. C. 400; Sumner v. Candler, 92 N. C. 634; State v. Mc-Nair, 93 N. C. 628; State v. Skidmore, 109 N. C. 795, 14 S. E. 63; State v. Dula, 61 N. C. 437......
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Baker v. Norfolk & S.R. Co.
... ... ruled out must appear before we can see that any error has ... been committed by the court. Knight v. Killebrew, 86 ... N.C. 400; Sumner v. Candler, 92 N.C. 634; State ... v. McNair, 93 N.C. 628; State v. Skidmore, 109 ... N.C. 795, 14 S.E. 63; ... ...