McDonald v. Carson
| Decision Date | 28 February 1886 |
| Citation | 94 N.C. 497 |
| Court | North Carolina Supreme Court |
| Parties | CHARLES MCDONALD v. J. H. CARSON, et als. |
OPINION TEXT STARTS HERE
CIVIL ACTION, tried before MacRae, Judge, and a jury, at January Term, 1886, of the Superior Court of CABARRUS county.
There was a verdict and judgment for the plaintiff, and the defendants appealed.
The facts are fully stated in the opinion.
Messrs. W. W. Fleming and C. M. Busbee, ( Mr. H. S. Puryear was with them on the brief,) for the plaintiff .
Messrs. Paul B. Means and John Devereux, Jr., ( Messrs. D. Schenck and Chas. M. Price were with them on the brief,) for the defendants .
The action is to recover compensation for services alleged to have been rendered to the defendants, in bringing about and effectuating a sale of a valuable gold mine belonging to them, and known as the “Rudisill Mine,” under a contract, whereby, if the sum of $35,000.00, the price to be demanded, was obtained, the plaintiff was to have a commission of ten per cent. thereon. The defendant James H. Carson put in an answer at the return term of the summons, in which, passing in silence the allegations of defendants' ownership of the property, and the denied demand made on them by the plaintiff for payment, he controverts all those contained in sections 2, 3, and 4, which aver the making the contract with the plaintiff, and his agency in a subsequent sale of the mine. The other defendants subsequently filed a joint answer, adopting that of their associate. Two issues were prepared and accepted by the Court, to be submitted to the jury in these words:
“I. Did the defendant J. H. Carson contract with plaintiff, for himself and the other defendants, that they would ask $35,000 for the Rudisill Gold Mine, and that if the plaintiff would aid them in the sale of said property, by inducing and bringing any parties to them to purchase said property, and that if a sale was effected by the defendants to the parties so induced and brought by the plaintiff, or through the agency and aid of the parties so induced and brought by the plaintiff, the defendants would pay the the plaintiff a commission of ten per cent. on the amount for which the mine would sell?
III. If yes, what damage has the plaintiff sustained?”
During the argument, a third issue was submitted by the Court, numbered II. in the record, as follows:
II. “Was a sale of said mine effected by defendants to Larabee and Smart, (alleged purchasers,) or to one of them; or through the aid and agency of them, or one of them, to other parties? If yes, for what sum?
The jury respond in the affirmative to the first issue, “yes, $35,000.00” to that submitted by the Court; and to the other, “$35,000.00 with interest from date of sale.”
I. The defendants' first exception is to the action of the Court in preparing the issue numbered II.
There is not only no error in this, but it was the duty of the Court to see that all material controverted matters contained in the pleadings, were eliminated and put in the form of issues, as commanded by the statute. Rudasill v. Falls, 92 N. C., 222. Arnold v. Estis, Ibid., 162. Bowen v. Whitaker, Ibid., 367.
In the last case, MERRIMON, J., who delivered the opinion, in reference to a remark of the Judge who tried the cause in the Court below, “that it was supposed to be the duty of counsel to tender issues, and for the Court to settle them in case of disagreement,” says:
It was, moreover, a necessary issue in developing the merits of the controversy. The first inquiry related to the contract between the parties, and its provisions; the other, as to damages. That introduced, supplied an obvious omission, by extending the inquiry to the sale made by the defendants and the price obtained.
If the issue was material, it ought to have been submitted, and if needless, as its prejudicial tendency is not apparent, it is not assignable as error. Perry v. Jackson, 88 N. C., 103.
The second and third exceptions are taken to the plaintiff's testifying to conversations with the defendant Wadsworth, in reference to the price set upon the mine, which took place about a year before the contract with the plaintiff, and about the time of making it, as irrelevant. These exceptions were properly overruled. The information related to the mine--the price put upon it--the disposition of the owners to sell--and the plaintiff's communicating the fact that he had parties that would examine the mine with plaintiff's son. Wadsworth's reply to his inquiry about paying him a commission was: Certainly this testimony was pertinent to the question of the making of the alleged agreement with Carson, denied and in dispute.
IV. The exception numbered IV is not set out so that we can understand and pass upon its force, unless it be to the admission of secondary evidence of the contents of a letter written by him to Wadsworth. Thereupon the plaintiff introduced a notice bearing this caption:
To the defendants above named:
“Take notice that you are hereby requested to produce on the trial of the above entitled action, now pending in the Superior Court of Cabarrus county:
1st. The letter written by C. McDonald, the plaintiff above named, to the defendant J. W. Wadsworth, of date the 7th day of February, 1879. Unless said letter is produced, its contents will be offered in evidence by the plaintiff,” &c. (The rest of the notice refers to other papers.)
The notice has the following endorsement:
“Executed by delivering a copy, March 7th, 1885.
C. A. POTTS, Sheriff.”
The defendants insisted that there was no evidence of service of the notice on Wadsworth.
The sheriff makes this return to the notice, to be used in the Court of which he is an officer, and his official acts and returns are recognized, without proof to his signature.
In Holding v. Holding, 2 Car. Law Rep., 440 (324), SEAWELL, J., delivering the opinion, says: “The law considers every Court cognizant of the official to whom it authorizes such Court to direct its precepts; and when return is made, the officer is presumed in law, to have come personally in Court, and then to have been recognized in virtue of his commission, and hence it was unnecessary at common law, to make any return upon the writ otherwise than ‘Executed,’ or the like.” The same official recognition of his acts, extends to his service of notice by statute.
“When a notice shall issue to the sheriff, his return thereon that the same has been executed, shall be deemed sufficient evidence of the service thereof.” The Code, §940, which is the Rev. Code, ch. 31, §121, condensed.
The term used in the return, “Executed by delivering copy,” necessarily implies a delivery to each of those to whom the notice is addressed, as otherwise it would be but a partial and uncompleted service.
V. The objection to the introduction of a deed from defendants to one J. H. Whiting, conveying the gold mine property, is without force. It shows the sale on which the plaintiff relies for the recovery of his claim.
VI and VII. The next objection was to the order of the Court, requiring the defendants to produce the contract of sale, preceding the execution of the deed entered into between them and Whitney, and which was one of the documents whose production was demanded in the concluding words of the notice already considered, but omitted in setting it out.
This power of requiring the production of proper papers pertinent to the issue, and in possession of an adversary party, has been long and beneficially used in the trial of actions at law, by virtue of positive statute. It is still possessed by the Court. The Code, §§578 and 1373, and cases cited at the foot of those sections, among the more recent of which are McLeod v. Bullard, 84 N. C., 515; Commissioners of Forsyth v. Lemly, 85 N. C., 341; Coates v?? Wilkes, 92 N. C., 376.
VIII. During the cross-examination of the defendant Wadsworth, testifying for himself and co-defendants, the witness said, “Plaintiff never wrote me about it,” referring to the mine. “I received a letter from the plaintiff making certain inquiries.” The defendants then interposed an objection which was overruled.
The letter purporting to be that of the witness, exhibit “D” in the transcript, was then produced, and the witness denied having written it himself, but thought it was a copy of one he wrote, and that it was sent by his direction. The letter was addressed to the plaintiff, and refers to the sale of the land. The objection is, that this is...
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