Rangely v. Harris Et Ux

• Decision Date: 08 April 1914
• Citation: 81 S.E. 346,165 N.C. 358
• Parties: RANGELY. v. HARRIS et ux.
• Court: North Carolina Supreme Court

(165 N.C. 358)

81 S.E. 346

RANGELY.

v.HARRIS et ux.

Supreme Court of North Carolina.

April 8, 1914.

1. Trial (§ 141*)—Question of Law or Fact —Evidence—Credibility of Witness.

Where the consideration for a note and checks was the assignment of a trade-mark, which plaintiff testified he was authorized to assign by virtue of a power of attorney given by his principal, defendants who claimed failure of consideration may attack plaintiff's credibility, on the ground that the original power was not produced or accounted for, and that plaintiff could not give the name of the notary whose seal was attached.

[Ed. Note.—For other cases, see Trial, Cent. Dig. § 336; Dec. Dig. § 141.*]

2. Principal and Agent (§ 19*)—Authority of Agent—Burden of Proof.

One claiming the authority as agent to transfer a registered trade-mark has the burden of establishing his agency.

[Ed. Note.—For other cases, see Principal and Agent, Cent. Dig. § 36; Dec. Dig. § 19.*]

3. Bills and Notes (§ 537*)—Actions—Evidence—Jury Question.

In an action on a note and checks, the question whether they were procured by a frauduent conspiracy entered into by plaintiff and another held, under the evidence, for the jury.

[Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. §§ 1862-1893; Dec. Dig. § 537.*]

4. Evidence (§ 573*)—Weight—Opinion Evidence.

The weight of expert testimony as to the identity of the handwriting of documents is for the jury.

[Ed. Note.—For other cases, see Evidence, Cent. Dig. § 2399; Dec. Dig. j 573.*]

5. Appeal and Error (§ 992*)—Review-Facts—Competency of Expert.

Where there is some evidence that a witness is an expert, a finding by the trial court to that effect is final.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 3850; Dec. Dig. § 992.*]

Appeal from Superior Court, Surry County; Lane, Judge.

Action by J. H. Rangely, Jr., against C. R. Harris and wife. From a judgment for defendants, plaintiff appeals. Affirmed.

Civil action upon these issues:

"(1) Were the checks and note set out in the complaint executed by defendants without a consideration? Answer: Yes.

"(2) Are Joe Allen and J. D. Dillie the same person? Answer: Yes.

"(3) Did J. D. Diffie make false and fraudulent representations to defendants, as alleged in the answer? Answer: Yes.

"(4) If so, were they made with the knowledge and consent of J. H. Rangely, Jr.? Answer: Yes.

"(5) Were the defendants induced by reason of said false and fraudulent representations to execute the checks and note set out in the complaint? Answer: Yes.

"(6) Is the plaintiff indebted to the defendants, and, if so, in what sum? Answer: Yes; in the sum of $100.

"(7) Are the defendants indebted to plaintiff, and, if so, in what amount? Answer: No; nothing."

The court rendered judgment against the plaintiff, who appealed.

J. C. Buxton, of Winston-Salem, J. F. Hendren, of Elkin, and W. L. Reece, of Dobson, for appellant.

R. L. Burns, of Carthage, and W. F. Carter, of Mt. Airy, for appellees.

BROWN, J. This action is brought by the plaintiff to recover of the defendant C. R. Harris upon two bank checks for $100 and $200, respectively, and to recover of both defendants upon a note for $400, all payable to the plaintiff.

The defendants plead a total lack of consideration, and that the execution of the checks and note were obtained by the false and fraudulent representations and conduct of the plaintiff. The plaintiff assigns error: "The refusal of the court for judgment at the close of the defendants' testimony on the checks and note sued on, which motion was renewed at the close of all the testimony, upon the ground that there was no evidence in the defendants' testimony to sustain the allegations contained in their answer."

The only consideration for the checks and note sued on is an alleged assignment of acertain trade-mark No. 7077, granting to C. R. Harris the exclusive right to make and sell Snowflake soap within a certain territory. The trade-mark was registered in the name of Mary E. Taylor, who assigned it to J. D. Diffie. The assignment to the defendant is signed,-J. D. Diffle, by J. H. Rangely, Jr., Agent.

A paper writing purporting to appoint H. M. Word and J. H. Rangely, Jr., "agents and attorneys in fact for and in my name to execute deeds to the Mary E. Taylor patented trade-mark" is in evidence signed, J. D. Diffie, by W. Alfred.

There is nothing in evidence tending to prove any authority to W. Alfred to make such conveyances for J. D. Diffle except this testimony of J. H. Rangely, Jr.: "I saw paper writing. (Objection by defendants.) It said: 'I, J. D. Dittie, do hereby appoint Alfred for my agent to sell unsold territory in the United States to sell Snowflake washing powder, and that he [Diffle] ratified all the sales heretofore made.' Name of J. D. Diflie was to this paper, and notary seal attached and signed by some one as notary public. It also said he was to make deeds and appoint agents."

There is no allegation in the pleadings that such power of attorney has been executed, and either lost or destroyed. There is no evidence that search has ever been made for it, and no foundation laid to admit parol evidence of its contents. The plaintiff in his evidence does not remember the name of the notary before whom it was probated. But, as the court admitted this evidence, the defendants had a right to attack the sufficiency of it, and the credibility of the witness before the jury under the first issue, for, if the plaintiff failed to satisfy the jury as to his right to execute the assignment to the defendant, the consideration totally failed.

It is not contended there was any other. The burden of proof was on the plaintiff to prove his agency and his right to execute the deed to the defendant, and it appears he failed to do so.

There is also evidence tending to prove that a fraudulent conspiracy was entered into between the plaintiff and J. D. Diffle to sell this trade-mark to the defendant. The plaintiff testified that he was acting for one Joe Allen in purchasing the trade-mark, viz.: "Before I wired the plaintiff about territory, a man known to me as Joe Allen called me up over the telephone and told me to buy out his partner, the plaintiff in this action, for him [Joe Allen], as he and Rangely were at outs. I knew Joe Allen's voice. He asked me to give my note and checks for the territory controlled by...