A. M. Sloan & Co. v. McDowell

• Decision Date: 30 June 1876
• Citation: 75 N.C. 29
• Court: North Carolina Supreme Court
• Parties: A. M. SLOAN & CO. v. R. J. MCDOWELL.

75 N.C. 29

A. M. SLOAN & CO.

v.R. J. MCDOWELL.

Supreme Court of North Carolina.

June Term, 1876.

The provision in the Code of Civil Procedure, allowing as a cause of demurrer, that there is another action pending between the same parties, for the same cause, must be confined to the courts of this State, where the remedies are precisely the same--the object being to protect parties from vexation, and the courts from multiplicity of suits. But in different States or Governments, the remedies are not the same; and there may be reason why our courts should not take notice of proceedings outside of the State, which would not be applicable to our own courts.

The entries of a merchant's clerk are not evidence against third persons. They are not under oath, and not subject to cross-examination.

CIVIL ACTION, tried before SCHENCK, J., at Spring Term, 1876, of MECKLENBURG Superior Court.

The case was before this Court at June Term, 1874, and is reported in 71 N. C. Rep. 356. The case was heard at this term upon the following

CASE AGREED:

It was in evidence that John H. Sloan, one of the original plaintiffs, died since the commencement of this action and the case was prosecuted in the name of A. M. Sloan, surviving partner. Upon the trial of the cause, before going into the facts before the jury, the plaintiff offered in evidence a record of the Circuit Court of the United States for the Southern District of Georgia, showing the pendency of a suit which had been instituted in that Court prior to the commencement of this action, which suit was still pending, in which R. J. McDowell, the defendant herein, was plaintiff, and A. M. Sloan, the plaintiff herein, was the defendant, based upon the same cause of action set up in the counterclaim in this suit, said record being properly authenticated under the Act of Congress, upon which evidence the counsel for the plaintiff moved the Court to exclude said counterclaim. The motion was overruled and the plaintiff excepted.

The deposition of A. M. Sloan, the plaintiff, was then read in evidence, in which he testified that the items in the account sued on, with the exception of the oats, cotton seed and guano, therein set forth, were contracted by a young daughter of R. J. McDowell, with different merchants in the city of Savannah, Ga., where the plaintiffs lived and did business as commission merchants, and were charged to A. M. Sloan & Co. That said items were approved by Miss McDowell, and upon such approval were paid by A. M. Sloan & Co. That Mr. McDowell requested defendant to pay any bills his daughter might contract for articles required by her. That she was in the city receiving music lessons. That all these bills were paid by A. M. Sloan & Co. That as to the guano, oats and cotton seed, they were purchased from A. M. Sloan & Co., by a verbal order, in the way customers of A. M. Sloan & Co., usually ordered.

The deposition of A. N. Soller was then offered in evidence in which he testified: That he was the book-keeper and cashier of A. M. Sloan & Co. at the time the items set forth in the account, sued on, were contracted. The account between McDowell and A. M. Sloan & Co. is correct. He knew it because he was their book-keeper, and paid out the amount, as stated in the account, for A. M. Sloan & Co. The accounts were paid by him, when presented, upon the approval of Miss McDowell. As to the guano, oats, and cotton seed, they were charged to R. J. McDowell, by the witness, on the books of A. M. Sloan & Co. at the time said goods were ordered, as likewise the other items in the account, and there was no individual account kept between A. M. Sloan and R. J. McDowell.

As to the counter-claim, A. M. Sloan testied: That he and McDowell, who were brothers-in-law, had been engaged in Georgia in a banking business, buying and dealing in notes. McDowell furnished the capital, and he managed the business; that the note in the counter-claim was given in 1864, as a memorandum of the amount he had at that time, belonging to McDowell. Subsequent to the giving of said memorandum note, under instructions from McDowell, to that effect, he had invested the amount thereof in cotton for McDowell, which had been lost by the result of the war.

McDowell, the defendant, testified: That all the items in the account were contracted with A. M. Sloan, individually, with the understanding that the amount thereof was to be credited on the note set up in the counter-claim. Said note was given in settlement of the banking partnership business, as the amount due him on such settlement, and for the payment of the money therein mentioned. He gave no instructions to invest said money in cotton. Various payments have been made thereon, which have been credited on the...