Sikes v. Parker

• Decision Date: 31 October 1886
• Citation: 95 N.C. 232
• Court: North Carolina Supreme Court
• Parties: W. H. SIKES v. W. J. PARKER, Admr. of J. McK. MULFORD.

95 N.C. 232

W. H. SIKES

v.W. J. PARKER, Admr. of J. McK. MULFORD.

Supreme Court of North Carolina.

October Term, 1886.

CIVIL ACTION, tried before MacRae, Judge, at Fall Term, 1885, of BLADEN Superior Court.

The plaintiff alleged that he and the intestate of the defendant, in 1871, entered into a copartnership in the general mercantile business, to be carried on in the name of the intestate; that such business was so conducted for several years, until the death of the intestate, when the defendant took into his possession all of the partnership assets, and refused to account with him therefor.The defendant answered that he had “no knowledge or information sufficient to form a belief as to the truth of these allegations.”

The following issues were, by agreement of counsel, submitted, as covering the matter to be submitted to the jury:

Was the plaintiffW. H. Sikes a co-partner in the business of J. McK.Mulford from 1871 to the death of said Mulford?

The plaintiff offered himself as a witness, and his counsel asked the following questions: Were you or were you not a partner of J. McK.Mulford?Objection by defendant.Objection sustained and plaintiff excepted.

The plaintiff testified that before Mulford came to Elizabethtown, and at the time he came, plaintiff was doing a liquor and grocery business in the store which Mulford afterwards occupied.

The plaintiff's counsel asked him the following questions: What became of your goods and business at the time that Mulford came to Elizabethtown?This question was asked, as stated by counsel for plaintiff, for the purpose of establishing the fact of a partnership, showing that the plaintiff's goods and business went into the hands of Mulford.Objections by defendant.Objections sustained.Plaintiff excepted.

W. A. Atkinson, a witness for plaintiff, was asked the question: Did you ever hear plaintiff at any time before the commencement of this suit (if so, when), say that he was a partner with Mulford?Objection by defendant.Objection sustained.Plaintiff excepted.

Much testimony was offered on each side.

The jury responded to the issue--No.

The appellant moved in the Supreme Court for a new trial, upon the ground of newly discovered evidence material to the issue.This motion was supported and opposed by affidavits.

Mr. Thomas S. Sutton, for the plaintiff .

Mr. C. C. Lyon, for the defendant.

MERRIMON, J.

The plaintiff was examined on the trial as a witness in his own behalf.In the very nature of the matter in respect to which the question embraced by both the exceptions were propounded, he would, in any answer he might make to them, unless he should answer in the negative, almost necessarily have to testify concerning a personal transaction or communication between himself and the intestate of the defendant.This he could not do, as the defendant was not examined.The Code, §590.The fact to be proven was that of a partnership between the plaintiff and the intestate.

Ordinarily, the partnership, if it existed, would in its nature imply such a transaction or communication--that they had conversations and an agreement, each with the other, of which each had knowledge from the other personally.About such a matter, each would see and talk with, and have transactions with the other.This would be in the usual order of things.It might, perhaps, be possible that the plaintiff could have answered the questions thus put to him without testifying to such a transaction or communication; but if he could, it ought to have appeared that he could, in order to render his answers competent.He might have been interrogated as to the source of the information he had pertinent to the matter inquired about, with a view to determine the question of the competency of such answers as he might make.He was competent to testify that he did not derive his information from a transaction or communication between himself and the intestate.Lockhart v. Bell,90 N. C., 499.

The plaintiff was first interrogated as to the existence of the alleged partnership, and obviously it was expected and intended that he should testify that it did exist.This he could not do, because in doing so he would be a witness “concerning a personal transaction or communication between himself and the intestate.”The Court having disallowed an answer to the first question, the second one was put to the witness, the counsel saying, that its purpose was to prove the partnership “by showing that the plaintiff's goods and business went into the hands of the intestate.”The witness could not testify as proposed for the reasons stated above.Certainly, unless it appeared to the contrary, the intestate if living, could contradict the plaintiff, because he would have had knowledge of the matter--the transaction in respect to which the plaintiff proposed to testify.The purpose of the statute is to prevent the surviving party from testifying in such case.The deceased cannot be heard, and in his absence by death, the surviving party shall not be heard.So that, the exceptions specified in the record cannot be sustained.

The plaintiff moved in this Court for a new trial, upon the ground that he had discovered since the trial in the Superior Court, much evidence going to prove the alleged partnership, that he did not know of at the trial, and that he could not by due diligence on his part have then produced.It has been frequently held, that this Court will always entertain such a motion with caution and scrutiny, and will not grant a new trial except in a clear case, coming within the well settled rules of practice in such respect.It is unnecessary to here restate the reasons upon which this rule is founded.They will be found stated in ample clearness in Bledsoe v. Nixon,69 N. C., 81;Shehan v. Malone,72 N. C., 59;Henry v. Smith,78 N. C., 27;Simmons v. Mann,92 N. C., 12.

It is not sufficient that the defendant has discovered evidence pertinent and competent, since the trial, to prove his case; he must show that he used reasonable diligence before the trial to produce evidence appropriate and sufficient for that purpose.Did he do this?Let us inquire.It appears that the intestate did an extensive business in the town of Elizabethtown for many years next before his death, as a merchant, and he had many, continuous, and varied transactions with many people in connection with his...