Nance v. Western Union Telegraph Co.

• Decision Date: 15 April 1919
• Docket Number: 395.
• Citation: 98 S.E. 838,177 N.C. 313
• Parties: NANCE v. WESTERN UNION TELEGRAPH CO.
• Court: North Carolina Supreme Court

98 S.E. 838

177 N.C. 313

NANCE v. WESTERN UNION TELEGRAPH CO.

No. 395.

Supreme Court of North Carolina

April 15, 1919

Appeal from Superior Court, Davidson County; Shaw, Judge.

Action by O. L. Nance against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals. No error.

In action for breach of contract, where defendant denied having breached the contract, the submission merely of the issue as to the amount, if any, plaintiff was entitled to recover, was insufficient, since there should have been an issue as to whether or not defendant had breached the contract.

Plaintiff sued for damages, alleging that he contracted with the defendant to board and lodge nine of its employés at $1.25 per day for each of them, and that after staying with him a few days they left his home, without any legal or sufficient cause, although he had to incur great expense in preparing to perform his part of the contract, and while they were with him as boarders and lodgers he supplied them with good and wholesome food and comfortable lodging, and was at all times able, ready, and willing to perform the contract throughout the time named therein. The defendant denied the allegations of the complaint.

The jury returned the following verdict:

"What amount, if any, is the plaintiff entitled to recover of the defendant? Answer: $150."

Judgment and appeal by the defendant.

Francis R. Stark, of New York City, and Walser & Walser, of Lexington, for appellant.

J. F Spruill, of Lexington, for appellee.

WALKER J. (after stating the facts as above).

There is but one question which requires consideration. Mrs Wafford testified that she had eaten at the plaintiff's boarding house both before and after the employés came there and saw the supper which was spread for them on the night they did not come, when they agreed to come and were expected by the plaintiff to come, and it "looked nice," was well cooked, and "looked as nice as anybody's." Defendant objected to this testimony, but it will be observed that at least some of it was clearly admissible, and the objection must fail; for where a part of testimony is competent, although the other part of it may not be, and exception is taken to all of it, it will not be sustained. Defendant should have separated the "good from the bad," and objected only to the latter, as the objection must be valid as to the whole of the testimony. We will not set off the bad for him, and consider only that much of it, upon the supposition that his objection was aimed solely at the incompetent part. He must do that for himself. This is the firmly established rule. State v. Ledford, 133 N.C. 722, 45 S.E. 944; Barnhardt v. Smith, 86 N.C. 479; Phillips v. Land Co., 174 N.C. 542, 545, 94 S.E. 12 and cases cited; Caldwell County v. George, 176 N.C. 602, 97 S.E. 507. We have very recently, at this term, approved this rule. It also applies to the charge of the court (Ritter L. Co. v. Moffitt, 157 N.C. 568, 73 S.E. 212; Hendricks v. Ireland, 162 N.C. 523, 77 S.E. 1011; Sigmon v. Shell, 165 N.C. 582, 81 S.E. 739), and also to a demurrer in pleading (Caho v. Railroad Co., 147 N.C. 23, 60 S.E. 640; Hay v. Collins, 118 Ga. 243, 44 S.E. 1002; Sloan v. S. A. L. Ry. Co., 64 S.C. 389, 42 S.E. 197; N. & W. R. Co. v. Stegall's Adm'x, 105 Va. 538, 54 S.E. 19; Va. & N.C. Wheel Co. v. Harris, 103 Va. 708, 49 S.E. 991).

But the testimony as to the kind of meals provided by plaintiff before the boarders came was relevant and competent, not generally or in all cases, but in this case, because of its peculiar facts. Plaintiff kept a boarding house, and agreed for a consideration to take these employés of defendant as boarders. giving them such lodging and table board as he had theretofore furnished to his other boarders. There was no special provision for better board or accommodations. It was competent for the witness, therefore, in stating what kind of table board they received after coming there, to compare it with that furnished before they came, as tending to show that, under the contract, which was general in its terms, and called for the same kind of accommodations and board theretofore supplied, the employés received the ordinary and usual board, and not such as they stated had been received. But, if not substantive evidence, it was, at least, corroborative of the witness, and no special instruction was asked as to how it should be applied by the jury, as required by rule 27 of this court (164 N.C. [ Anno. Ed.] 438, 81 S.E. xi).

The question to be decided, when this class of testimony is offered, is whether it is relevant; that is, whether it rationally tends to prove the fact in issue, and is so related to it as to form a reasonably safe basis for a conclusion in regard to the fact. Where the defense in an action brought to recover for labor was that the plaintiff had unskillfully performed such labor, evidence that he had unskillfully performed other labor was held irrelevant. Campbell v. Russell, 139 Mass. 278, 1 N.E. 345; Maguire v. Middlesex R. Co., 115 Mass. 239. Among inferences which, except under certain conditions, the law will not permit to be drawn, is that a person has done a certain act because he has done a similar act at another time. 17 Cyc. 279. The evidence in this case was both relevant and competent--relative because it tended to prove a material fact; and competent because the witness had personal knowledge of the matters to which she testified, and her statement was not res inter alios acta, as suggested by defendant's counsel. It will be noticed that Mrs. Wafford spoke of the table fare both before and after B. H. Moore and the other employés came to board. She saw the supper spread for them, and of which they did not come to partake, and she also had eaten at Mrs. Nance's table before that day. All this evidence tended to rebut that of the defendant, and to show that there had been full compliance with the terms of the contract by the plaintiff.

If the testimony offered in behalf of the plaintiff was found by the jury to be true, which seems to be the case, the plaintiff furnished such meals and substantial food as were sufficient to satisfy the normal appetite, though not, perhaps, suited to those of fastidious tastes. He was not required, under the contract, to gratify the luxurious tastes of an epicurean.

The testimony of Mrs. Wafford that her daughter was employed by plaintiff to help in the house when the new boarders should come, and that she was afterwards told by plaintiffs that her child's service would not be needed, as his wife could do the work after the boarders had left, if not harmless, tended to show that plaintiff, as he stated, had prepared, after making the contract, to receive his guests and have the proper waiters at the table for serving the meals. They could not eat if they could not get the food, and there must be some one to...