Ledford v. Emerson
| Decision Date | 25 May 1906 |
| Citation | 141 N.C. 596,54 S.E. 433 |
| Parties | LEDFORD. v. EMERSON. |
| Court | North Carolina Supreme Court |
Trial—Argument of Counsel—Comment on Failure of Party to Testify.
Where, in a civil action, the facts in issue were peculiarly within the knowledge of the parties, and defendant voluntarily absented himself from the trial, in violation of his bail bond made by order in the cause for his arrest on the ground of fraud in the matter at issue, the failure of defendant to testify was a legitimate subject of comment before the jury, subject to the legal control of the presiding judge.
[Ed. Note.—For cases in point, see vol. 46. Cent. Dig. Trial, § 301,] Appeal from Superior Court, Cherokee County; Neal, Judge.
Action by J. P. Ledford against A. S. Emerson. From a judgment for plaintiff, defendant appeals. Affirmed.
Dillard & Bell and Ben Posey, for appellant.
Busbee & Busbee, for appellee.
This case has been twice before the court recently on preliminary questions (138 N. C. 502, 51 S. E. 42; 140 N. C. 288, 52 S. E. 641), and is now before us on appeal from a final judgment obtained by the plaintiff against the defendant. The plaintiff alleged, and offered evidence tending to show, that in the year 1900 the plaintiff had procured an option of 4, 000 acres of land in Union and Towns counties, Ga., at the price of $100 per acre, afterwards increased to 6, 500 acres at said price; that the defendant, having obtained information of this fact in October, 1900, informed the plaintiff that he could find a purchaser for the option if the plaintiff would give him an interest in the margin or profits of any sale he could make, and the plaintiff and defendant then contracted and agreed that, if the defendant could find a purchaser, they would divide the profits equally, the defendant paying expenses; that the defendant afterwards sold the option for $10,000, receiving the money therefor, and the plaintiff's share of proceeds, less expenses and amounts already paid the plaintiff, amounted to $4,400, with interest from April 1, 1903. The issue submitted and responded to by the jury was as follows: "In what amount, if any, is the defendant indebted to the plaintiff by reason of the matters alleged in the complaint? $4,225, and interest thereon from May 1, 1903."
There were two exceptions urged upon our attention on the argument: (1) That there was no evidence offered from which any profits could be declared; (2) that counsel was allowed to comment on the fact that the...
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City of Kennett v. Katz Construction Company
...principle is involved when the remark is applied to a failure to introduce the testimony of a witness other than a party to a suit. [Ledford v. Emerson, supra; Devries & Co. Phillips, 63 N.C. 53.] The remark complained of that the "American Surety Company was incorporated in this State to d......
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City of Kennett v. Katz Const. Co.
...is a legitimate subject of comment before the jury, subject to the control and discretion of the presiding judge. Ladford v. Emerson, 141 N. C. 596, 54 S. E. 433; Hudson v. Jordan, 110 N. C. 250, 14 S. E. 741; Goodman v. Sapp, 102 N. C. 477, 9 S. E. 483. To a like effect see Lynch v. Peabod......
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Ledford v. Emerson
...refer for greater certainty. The case was before us on a prior appeal (138 N. C. 502, 51 S. E. 42), and again before us at the last term (141 N. C. 596, 54 S, E. 433), but not upon matters specially germane to the questions now involved. The issue submitted to the jury and the answer theret......
- Ledford v. Emerson