McRae v. Malloy

• Decision Date: 31 October 1885
• Citation: 93 N.C. 154
• Court: North Carolina Supreme Court
• Parties: PETER MCRAE, Adm'r, v. CHARLES MALLOY.

93 N.C. 154

PETER MCRAE, Adm'r,

v.CHARLES MALLOY.

Supreme Court of North Carolina.

October Term, 1885.

This was a CIVIL ACTION tried before MacRae, Judge, at Special Term, 1885, of RICHMOND Superior Court.

There was judgment for the defendant, from which the plaintiff appealed.

The defendant, who had been guardian to Alexander Malloy during his minority, and held a large trust estate in his hands, some years after his ward arrived at full age executed to him the following instrument in writing and under seal:

+---------------------------+
                ¦STATE OF NORTH CAROLINA, ¦)¦
                +-------------------------+-¦
                ¦Richmond County.         ¦)¦
                +---------------------------+
                

For and in consideration of paying and discharging the balance due Alexander Malloy, of whom I was guardian, I do hereby promise and agree to pay to said Malloy annually, one third of the net profits to be made at the factory of Malloy & Morgan during my life.

C. MALLOY. [Seal].

8th March, 1878.

The present action was commenced by the plaintiffs, the administrator of said Alexander Malloy and his heirs-at-law, by the issue of a summons against the defendant, returnable to Spring Term, 1879, of the Superior Court of Richmond, to enforce said covenant, and to have an account taken of the operations of the factory during the next ensuing year, to the end that the share due the intestate be ascertained and recovered.

The defendant put in his answer at the same term, and afterwards an amended answer, setting up, among other defences not material in determining the present appeal, that the covenant or contract was obtained from him by surprise and undue influence.

Two issues only were submitted to the jury, which, with the responses to each, are:

I. Was the contract sued upon obtained by surprise or undue influence? Yes, by surprise.

II. Was defendant induced to execute said contract by false representations made by intestate or his attorneys? No.

The plaintiffs demanded judgment upon the finding under the second issue, insisting that they were entitled thereto, notwithstanding the finding upon the first, which was refused, and judgment being rendered upon the verdict for the defendant, they appealed.

Mr. Frank McNeill and Messrs. Reade, Busbee & Busbee, for the plaintiff .

Messrs. Burwell & Walker, for the defendant .

SMITH, C. J. (after stating the facts).

The exceptions to be considered are to the rulings of the Court upon questions of evidence, to the refusal of instructions asked, and to such as were given to the jury.

The execution of the contract being admitted and the burden in impeaching its validity thus devolving on the defendant, he was first examined as a witness on his own behalf, and testified in regard to the circumstances attending the making of the contract thus:

The contract was signed at Alex. Malloy's house--Messrs. Shaw, McNeill, Morgan and myself being present. Messrs. Shaw and McNeill are lawyers and were Alex. Malloy's attorneys, not mine. It was about 12 o'clock. I live three-fourths of a mile from the house; I got there about 8 o'clock--after breakfast; I was not notified before that day that the transaction was to occur and had no knowledge of it.

The plaintiffs here interposed an objection which was disallowed, and they excepted.

The objection is in a very general form and it does not appear to how much and what portions of the preceding testimony it is intended to apply. If all are embraced and some portions are competent while others are not, the exception is too broad to be sustained. As was said in Barnhardt v. Smith, 86 N. C., 473, “it is not erroneous to refuse to rule out a volume of testimony when a portion of it ought to be received, and therefore the statutory rule of practice prevails which requires that the obnoxious evidence shall be specially pointed out and brought to the notice of the Court in order to a direct ruling on its execeptions,” &c. The same principle is recognized in regard to the Judge's instructions before the change in The Code since introduced. §412, par. 3. Bost v. Bost, 87 N. C., 477.

If the exception was intended to be restricted to the concluding sentence, the absence of information of what was about to take place--it does not fall under the condemnation of §590 of The Code.

It may include the intestate, but it is of much wider scope and takes in every possible source from which information might come, and thus encounters the very same difficulty already adverted to.

The preliminary question was first to be determined by the Judge, that the evidence involved a negation of what may have been said by the intestate, and then the testimony would have been confined to the want of information from others. Lockhart v. Bell, 90 N. C., 504.

The case is not like that of Woodhouse v. Simmons, 73 N. C., 70, since there the living party was not permitted, after the statutory presumption of payment had arisen, to repel it by proving that, in fact, the note had not been paid. This necessarily related to an inter-communication between the parties and was ruled out, as within the inhibitions of the statute, since it was possible the deceased might sustain the presumption by proving an actual payment of the debt.

II. The second objection to the detailed account of the loss of trust funds by the burning of his house by the invading armies under Sherman--of his inability to collect the notes, solvent when taken and rendered worthless by the destruction of the property of the debtors--his seeking and acting under advice of counsel--and his delivery of what funds he still held to the plaintiff--must be disposed of in the same way as the preceding exception. The objection is not pointed to any portion of the testimony, nor do we discover any against which, if so directed, it would be available.

III. The plaintiff objects also to the witness saying “I was very much excited when I signed the paper”; “I felt very much depressed”; “I would not have signed it, if I had had proper time for reflection.” These were facts capable of proof by others, and must be equally provable by the plaintiff. They indicated the state of mind of the witness when he signed the contract, and his repugnance to the act. The inquiry is, whether the instrument was procured by surprise and pressure which could scarcely be resisted, and is explanatory of the act of execution.

IV. The plaintiff further excepts to the witness being allowed to say-- ““An hour or two afterwards,” on the road home, “I expressed to Mr. Morgan my regret that I had signed it”--“I told him I was forced to sign it or I would have to sign it,” just before its execution;--“I considered I did not owe Alexander Malloy a cent.”

These are indications of the state of mind just before and after the signing, as he says it was at the time of doing the act--and are corroborative of his testimony in this particular. Concurrent declarations are competent to support as well as to contradict, and these may be shown by an impeached witness, as this witness is by his very relation to the cause and controversy, as well as by others who heard them. State v. George, 8 Ired., 324.

The witness was certainly competent to say that he did not consider that upon a just settlement of the trust estate, he would be found indebted to his ward, for this is the obvious meaning of the declaration, based upon the destruction of funds in his hands which he could not by any rule of fiduciary diligence prevent. But it is a harmless estimate, perhaps an erroneous one, not calculated, so far as we can see, to prejudice the plaintiff's case.

V. The next exception is to testimony delivered on cross-examination not responsive to the question “what became of the notes you saved?”

The witness, after a brief recital of his efforts to preserve the trust funds and their seizure by the Federal soldiers, says, “What they did not get I gave to Alex. Malloy.”

The witness was not stopped in giving his narrative--nor until he had said what is now the subject of exception. The concluding words are in direct response. The plaintiff, if opposed to the giving in of the testimony, should have interposed and arrested the examination, or if this could not be done in time, should have asked the Judge to require its withdrawal or to direct the jury to disregard it, so that it would become harmless.

But it is not admissible for counsel to be quiet and allow the evidence to come out and take advantage of it, if favorable, and if not, to ask that it be stricken out and not considered. It is not subject to exception as is testimony in itself incompetent and not extracted upon examination of the witness by the complaining party.

VI. The next and remaining exception to evidence received (unless some have been inadvertently overlooked) is to a portion of that of the witness Morgan, wherein he says: “I didn't consider...