Nowell v. Basnight

• Decision Date: 07 March 1923
• Docket Number: 97.
• Citation: 116 S.E. 87,185 N.C. 142
• Parties: NOWELL ET AL. v. BASNIGHT ET AL.
• Court: North Carolina Supreme Court

116 S.E. 87

185 N.C. 142

NOWELL ET AL. v. BASNIGHT ET AL.

No. 97.

Supreme Court of North Carolina

March 7, 1923

Appeal from Superior Court, Bertie County; Horton, Judge.

Action by L. A. Nowell and another against H. S. Basnight and others, for conversion of tobacco. Judgment for plaintiffs and defendants appeal. No error.

To prove title of plaintiff in conversion, his testimony that he bought the property of certain persons, and their testimony that they sold it to him, is competent.

John Davenport, of Windsor, for appellant Basnight.

Pritchard & Craig, of Windsor, Roswell C. Bridger, of Winton, and S Brown Shepherd, of Raleigh, for other appellants.

Winston & Matthews, of Windsor, for appellees.

WALKER J.

The plaintiffs, L. A. Nowell and J. H. Allen, during the year 1918 were partners in trade, buying leaf tobacco of farmers in Bertie and Hertford counties. This action is brought to recover of defendants the value of certain tobacco raised on the Bass land and the Phelps tobacco, belonging to plaintiffs, as they allege.

Q. A Bass owned a farm in Bertie county, and leased his son, J. A Bass, 10 acres of the land to be planted in tobacco. Under their arrangement the elder Bass, as landlord, was to receive half of the crop when prepared for market, and the other half belonged to the son. The son was called to the war before he had completed the crop. Before going to camp he sold out to Asa P. Robertson, who simply took the place of young Bass as tenant of the father. After this arrangement was made, the elder Bass sold his interest in the crop to plaintiffs, Nowell and Allen, and received payment in full from them. Later Robertson sold his interest in the crop to plaintiffs, Nowell and Allen, who then became the owners of the whole crop. The tobacco was housed and put in the pack house on the Joe Harrell farm in charge of one Evans. There was also placed in this pack house a lot of tobacco plaintiffs had bought of a man named Phelps. The value of these two lots of tobacco was placed as high as $3,000. The evidence is that some of the tobacco was carried from the Harrell pack house and put in a barn on a farm owned by defendant Godwin. Five loads of the rest was carried to Ahoskie and placed in the loft of Godwin's livery stable. This particular lot Godwin and Wynns sold to the defendant Basnight. Robertson has left the state, and was never served with process. Wynns was present in court, but was not placed on the stand as a witness. He introduced his own examination taken before the clerk.

Neither of the plaintiffs authorized the removal of the tobacco by Wynns and Robertson, or knew for some time that they had removed it. They carried away five wagonloads to Godwin's stable, in addition to that carried to the Godwin farm--the Britton place. When Godwin sold the tobacco to Basnight he had the check given for the price made payable to Wynns. In his examination before the clerk, Wynns said that he was never paid anything by Godwin or any one else for the tobacco.

No exception was taken to the charge, no special prayers were tendered and refused, no motion for nonsuit was made at the close of plaintiffs' evidence, but such a motion was made at the close of all the evidence.

The plaintiffs having sued for the value of their tobacco, it was incumbent on them to show ownership.

The first seven exceptions are taken to the admission of evidence tending to show such ownership.

Exception 1. Q. A. Bass, landlord, was permitted to say that he sold his interest to the plaintiffs. How else could plaintiffs show they acquired ownership of the crop?

Exception 2. Q. A. Bass, landlord, was permitted to say that plaintiffs paid him for the tobacco; the tobacco in question. Q. A. Bass, as landlord, owned half the Bass tobacco. Plaintiffs bought that half of the Bass crop of him. His testimony covered that point, and was competent. That is the only part of his testimony objected to. We cannot sustain the ground of these two objections.

Exceptions 3 and 4 cover the same idea. J. A. Bass, the tenant, was testifying. Plaintiffs claim to have purchased his half of the crop. J. A. Bass sold to A. P. Robertson. No one denied it. It was necessary to prove it. The evidence objected to is that, after witness J. A. Bass sold to Robertson, he (Bass) saw Robertson working the crop. The witness Bass said that Wynns was not connected with this arrangement between himself and Robertson. No one claims that he was. These objections are of the same character as the first and second, "taken during the preliminary stages out of an abundance of precaution." Under all four exceptions the evidence was competent. It was not denied by any one.

Exception 5. J. H. Allen, managing partner of the plaintiffs, was testifying as to how and when he bought the two halves of the Bass crop. The defendants objected to his statement that "a few days" intervened between the purchases. No ground of exception is set out in the case, and there can be none.

Exception 6. J. H. Allen narrated the terms of his purchase from Robertson, who purchased of the tenant, J. A. Bass. It seems that the identical testimony had been given by this witness before and without objection. The evidence is competent to show the extent of plaintiffs' purchase, and that no liability attached to the partnership for making, housing, and marketing the crop.

Exception 7. This relates to the claim for the value of the Phelps tobacco. The claim of plaintiffs is for two lots of tobacco taken from one pack house; Bass' tobacco and Phelps' tobacco. Without objection plaintiffs had at length testified that they had purchased the Phelps tobacco and put it in the same pack house where the Bass tobacco was. The defendants were cross-examined in regard to this at some length. It surely was competent to show by Phelps that he had in fact sold his crop to plaintiffs. The evidence was competent in chief, substantively, and certainly it corroborated Allen.

Exception 8. The court admitted evidence to show that Robertson and Godwin were farming together. This was competent as tending to show Godwin's interest in the crop. No harm could possibly come of it.

Exception 9. The evidence is that with large sales warehouses in Ahoskie, Godwin, who lives there, and in whose stable loft the tobacco was placed, sold the tobacco to Basnight, who shipped it to Rocky Mount, N. C., for sale. The defendant Basnight was on the stand. Certainly it was proper, as against him, to show that the transaction was fraudulent, and not open and fair. The admission was good as against Basnight, who is not complaining. Godwin should have asked that the evidence be confined to Basnight. He did not do so, and is bound by it.

At different times during the trial, evidence was restricted and confined to particular persons, or in corroboration. After the admission of the evidence Basnight's attorney examined him at length on it, and without objection from Godwin or from Wynns.

Exception 10. When Godwin sold the tobacco to Basnight he directed that the check be made payable to General Wynns. Wynns indorsed that check by making his mark. Godwin was claiming that he got none of the money; Wynns, under examination before the clerk, swore he got none. Godwin wrote the name "General Wynns" on the back of the check. It was relevant and important to show that fact. Curtis, cashier of the bank, knew Godwin's handwriting, and testified to it. The plaintiffs say that all this objection "goes up in smoke" when Godwin afterwards goes on the stand and admits that he did the indorsing by writing General Wynns' name on the back of the check.

Exception 11. Godwin was on the stand as a witness for himself. He was asked to narrate a conversation had between him, Godwin, and Robertson at the time the tobacco was put up in the stable loft. The court excluded it. Robertson was not a witness. He was not served with process. For some cause he was out of the state. No deposition was taken. The evidence, therefore, was hearsay.

A fatal defect in the exception is that the defendant did not set out the excluded evidence so the court could see its competence or incompetence. It was the duty of defendants to have done so. Lynch v. Veneer Co., 169 N.C. 170, 85 S.E. 289, and cases there cited.

Exception 12. Godwin alone takes this exception. Joe Harrell, a witness for the plaintiff, was asked: "Did Wynns tell you he never got a cent for this tobacco?" To this Godwin excepted. The court admitted this evidence against Wynns, but not against Godwin. With this caution and restriction the court admitted the evidence, and in that light only. Wynns did not except. This caution was full and clear. We here refer to the fact that the defendants put in evidence an examination of Wynns had before the clerk. It is significant, plaintiffs contend, that Wynns was at the trial, in court all the time, and cross-examined witnesses, but did not take the stand as a witness. In his written examination taken before the clerk and put in evidence by the defendants, Wynns says: "Nobody paid me for the tobacco. I did not get any of the money for the tobacco." The admitted evidence was apparently competent in corroboration. There is ample evidence of a common design and purpose, and the court might have admitted the evidence against Godwin. It did not, and he has no ground of complaint.

We have thus taken up the exceptions as to evidence one by one, and considered them carefully, and even with scrutiny. We would not have done so had it not been for the very exhaustive and searching discussion of them by Mr. Shepherd, which was presented by him with his usual ability and learning and his legal acumen. But, after a careful analysis of the case, and deliberation upon the...