Southern Loan & Trust Co v. Benbow

• Decision Date: 08 May 1904
• Citation: 135 N.C. 303,47 S.E. 435
• Court: North Carolina Supreme Court
• Parties: SOUTHERN LOAN & TRUST CO. v. BENBOW.

47 S.E. 435

135 N.C. 303

SOUTHERN LOAN & TRUST CO.

v.BENBOW.

Supreme Court of North Carolina.

May 8, 1904.

EVIDENCE — LETTERS — IDENTIFICATION—COMPETENCY — EXCLUSION — WAIVER OP CONDITIONS—FORCE OF EVIDENCE—QUESTION FOB JURY—FRAUDULENT TRANSFERS—CONSIDERATION—ADEQUACY—APPEAL — QUESTIONS PRESENTED.

1. Where plaintiff introduced in evidence the entire record in supplementary proceedings, it thereby waived its exception to the previous exclusion of parts of such record, objected to as being fragmentary.

2. Letters which witness thought that he had dictated, though he had no recollection of doing so, and which were typewritten, and signed by another, there being nothing to show that, even if witness had dictated them, they were correctly transcribed, or ever seen by him after they were written, were not sufficiently identified to be admissible in evidence.

3. An autograph letter as to a conversation had with defendant, which does not purport to give defendant's exact language, or to contain the entire conversation, or any substantial part thereof, but simply states, in the writer's own language, as the result of the conversation, that defendant said he wanted to pay certain notes, is not competent evidence.

4. The release by a wife of her right of dower involved in signing mortgages for $50,000 is a valuable consideration for a note for $15,000 executed by her husband to her.

5. The probative force of testimony is a question for the consideration of the jury alone.

6. Whether the consideration for a note transferred by a husband to his wife was adequate was a question of fact for the jury.

¶ 6. See Fraudulent Conveyances, vol. 24, Cent Dig. § 928.

7. The question whether the consideration for a note transferred by a husband to his wife was so inadequate as to suggest fraud could not be considered on appeal in the face of the verdict of the jury that the note was transferred for a valuable consideration, and not in fraud of creditors.

Clark, C. J., and Montgomery. J., dissent.

On petition for rehearing. Petition allowed.

For former opinion, see 42 S. E. 896.

DOUGLAS, J. This case is now before us on a petition to rehear. After the most careful consideration we are forced to the opinion that the petition should be allowed, and the judgment of the court below affirmed, as we find no substantial error in the record. We do not think it necessary to discuss any exceptions other than those decided in the former opinion. 131 N. C. 415, 42 S. E. 896. The plaintiff offered to read in evidence certain parts of the testimony of D. W. C. Ben-bow and of the statement of Mrs. Mary E. Benbow given in supplementary proceedings. Upon objection by the defendants this testimony was excluded by the court as being fragmentary. The plaintiff then, reserving his exceptions, introduced In evidence the entire record in the supplementary proceedings. Even if the evidence as originally offered had been competent, and therefore improperly excluded—a question we do not find it necessary to decide—the plaintiff waived his right of exception by introducing the entire record, which, of course, included the part previously offered. If he wished to take advantage of his exception, he should have relied upon it, and not have sought the inconsistent benefits of having his evidence before the jury and the right to a new trial on account of its previous exclusion if it failed of its desired effect In other words, he should not have the benefit of both its exclusion and admission at the same time. This point has been expressly decided in Cheek v. Lumber Co. (at this term) 46 S. E. 488. We see no essential difference between such a case and the effect of introducing testimony after a demurrer to the evidence has been overruled, which is held to be a waiver of the exception. In both cases substantial justice seems to require that a party should either rely on his exception or abandon it. This was the rule in both the state and fed-eral courts before the passage of the so-called "Hinsdale Act" (Laws 1897, p. 155, c. 109, amended by Laws 1899, p. 263, c. 131), and rests equally upon reason and authority. Purnell v. Railroad, 122 N. C. 832, 29 S. E. 953; Cox v. Railroad, 123 N. C. 604, 31 S. E. 848; Gates v. Max, 125 N. C. 139, 34 S. E. 266; Railway v. Daniels, 152 U. S. 684, 14 Sup. Ct. 756, 38 L. Ed. 597; Runkle v. Burn-ham, 153 U. S. 216, 14 Sup. Ct. 837, 38 L. Ed. 694.

Another exception of the plaintiff was to the exclusion of certain letters written by R. R. King to certain of Benbow's creditors. King testified that he had no recollection of writing the letters, nor of anything therein contained, and that the letters did not refresh his memory in the slightest degree. After examining the letters, all that he was willing to say was that one of them was in his handwriting, and the others, typewritten and signed by Mr. Kimball in the name of the firm, were probably dictated by him, as he had personal charge of those matters of liti gation. He further testified, in substance, in answer to repeated questions, that he always tried to tell the truth, and that he would not have stated in those letters anything that at the time he did not believe to be true. In no view of the case could any of the letters other than that in King's handwriting be competent against any of the defendants. They are typewritten, and signed by Kimball. King thinks he dictated them, but has no recollection of doing so. Even if that fact were established, there is no evidence that the letters were correctly transcribed, or that they were ever seen by King after they were written. The fact that they were not signed by him would tend to show that they were written and mailed in his absence. If he had read them over, he would probably have signed them. We do not think there was such identification of the papers themselves as is absolutely essential for their introduction under any circumstances.

Mr. King's autograph letter is sufficiently identified as the original paper, but we think that it is otherwise incompetent. It does not profess to give Dr. Benbow's exact language, nor in fact does it repeat the conversation at all. It does not pretend to contain the entire conversation between Mr. King and Dr. Ben-bow, or any substantial part thereof, but simply states, in the writer's own language, as the result of their conversation, that Dr. Ben-bow said he wanted to pay certain notes, and to have them sent to Greensboro for that purpose. Mr. King testified that he had a great many conversations with Dr. Benbow, and it is evident that these letters were never intended to contain a record of the numerous conversations, but merely to state such isolated parts thereof or conclusions therefrom as were necessary to the immediate correspondence. This clearly takes the letters out of the rule laid down in 1 Greenleaf, §§ 439a, 439b, even if we were inclined to carry the principle to the full extent covered by the wording of the section. The author cites but three cases from this state. Green v. Caw-thorn, 15 N. C. 409; State v. Lyon, 89 N. C. 568, and Bryan v. Moring, 94 N. C. 687. The first case involved no writing whatever, but merely held that: "Where A. communicated to B. a statement made to him by C, and upon his examination could not recollect its substance, C. is a competent witness to prove it." There each witness testified to his personal recollection. In Lyon's Case the witness was permitted to examine an alleged libelous article in a newspaper, not to prove the truth of its contents, but to refresh his recollection as to whether he had seen it. In that case the court says on page 571: "It is not necessary that the mind should be able to recall the distinct facts, when the witness has such assurance of them as enables him to testify. Among the classes into which Mr. Greenleaf distributed this species of evidence is one in which the witness fails to recognize the writing nor does it awaken his memory, yet, knowing the writing to be genuine, his mind is so convinced as to be enabled thereby to swear positively to the fact"—citing 1 Greenl. Ev. § 437. In turning to the section of Greenleaf then relied upon by the court, we find that it is omitted by his progressive editor from the latest edition of the work that bears his name, and relegated to the appendix as being out of date. What Prof. Greenleaf himself said is as follows: "Where the writing in question neither is recognized by the witness as one which he remembers to have before seen, nor awakens his memory to the recollection of anything contained in it, but, nevertheless, knowing the writing to be genuine, his mind is so convinced that he is on that ground enabled to swear positively as to the fact." The italics are ours, and we are compelled to say do not seem to us to mirror the condition of the witness' mind upon the letters in question. In Bryan v. Moring, the witness, referring to the paper offered in evidence, which was the testimony taken down by him in the ex parte probate of the will before the clerk, testified that: "I was requested by the clerk to take down the testimony, and did so by consent of counsel. I took down the substance of the evidence of J. E. Bryan, and this paper contains everything of importance testified to by him, omitting repetition merely, and is in the main correct. It contains the substance of his evidence accurately." In that case the evidence was taken down for the express purpose of preserving it, and the writer testified that it contained accurately the substance of all that was said. It was admitted as impeaching testimony. In State v. Pierce, 91 N. C. 606, the written papers, offered only as impeaching evidence, were the written examinations of the impeached witness before the coroner and committing magistrate, both of whom fully identified the papers. State v. Jordan, 110 N. C. 491, 14 S. E. 752, also referred to the written examination of a witness taken down by the committing magistrate, and...