Neil v. L. D. Childs & Co.
| Decision Date | 31 August 1849 |
| Citation | 32 N.C. 195,10 Ired. 195 |
| Court | North Carolina Supreme Court |
| Parties | NEIL, BROWN & WILLIAMS v. L. D. CHILDS & Co. |
A party does not make one his witness by taking his deposition, which he declines to read, or by having him subpœnoed, and then declining to examine him.
All contracts are several, although made by partners.
The case of Jones v. Ross, 2 Car. Law Rep. 450, cited and approved.
Appeal from the Superior Court of Law of Mecklenburg County, at the Special Term in July 1849, his Honor Judge BAILEY presiding.
This was an action of assumpsit, brought by the plaintiffs, as partners, under the style of Neil, Brown & Williams, against the defendants, as partners, under the style of L. D. Childs & Co. The contract, on the part of the defendants, was to make and deliver certain machinery for a cotton factory, and the breaches alleged were, that the machinery was not of proper materials and workmanship, nor delivered according to the contract. The plaintiffs introduced one Stowe, as a witness, who proved that, in January 1846, a contract was entered into between the plaintiff Neil, acting for the firm of Neil, Brown & Williams, and the defendant Childs, acting for the firm of L. D. Childs & Co., in which it was agreed, that the defendants would make and deliver certain machinery for a cotton factory at their warehouse by the 1st of August succeeding, and the plaintiffs agreed, that it should be paid for in cash on the delivery. It was also agreed, that the machinery should be made of the best materials and in the best style of workmanship. On cross examination, it was stated by the witness, that, at the time the contract was made, he was a clerk of L. D. Childs & Co, then under the direction of the defendant, Childs, and that, in the presence of the plaintiff, Neil, he took down a memorandum, in which he specified the kinds of machinery and the price of each article. It was objected that proof of the verbal contract could not be given, if the contract was written in the manner stated by the witness. The objection was overruled. The witness proved, that the machinery was not delivered until January 1847, and that its materials and style of workmanship were inferior to those agreed upon. The defendants then offered and read the deposition of one Springstein, to prove the value of the machinery. This deposition had been taken by the plaintiffs, but was not offered by them.
The plaintiffs introduced a witness to prove, that the witness, Springstein, had hostile feelings to them when the deposition was taken, and that he had made statements contradictory of the deposition, before it was taken. This testimony was objected to, but admitted by the Court. The defendants objected that the plaintiffs could not recover, because there was no proof, that the machinery, though delivered to the plaintiffs and received by them, had been paid for, before the suit was brought. The objection was overruled. It was...
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State v. Tilley
...as a witness; or by taking his deposition as a witness, unless he offers the deposition or part of it in evidence at the trial. Neil v. Childs, 32 N.C. 195; 58 Am.Jur., Witnesses, Section 793; 70 C.J., Witnesses, Section 3. A party even makes an adverse party in the litigation his own witne......
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State v. Pope
...it is not recognized in this jurisdiction. See State v. Norris, 2 N.C. 429 (1796); Sawrey v. Murrell, 3 N.C. 397 (1806); Neil v. Childs, 32 N.C. 195 (1849); Hice v. Cox, 34 N.C. 315 (1851); State v. Taylor, 88 N.C. 694 (1883) (Disapproving State v. Norris, Supra); State v. Bagley, 229 N.C. ......
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Hudson v. Jordan
...himself, and the plaintiff "did not make one his witness by taking his deposition, which he declined to read." Peakson, J., in Neil v. Childs, 10 Ired. 195. Every one knows that as a matter of practice the evidence of a witness viva voce is more effective with a jury than the reading of a d......
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