Steele v. Coxe

• Court: North Carolina Supreme Court
• Citation: Steele v. Coxe, 225 N.C. 726, 36 S.E.2d 288 (N.C. 1945)
• Decision Date: 17 December 1945
• Docket Number: 600
• Parties: STEELE v. COXE.

36 S.E.2d 288

225 N.C. 726

STEELE v. COXE.

No. 600

Supreme Court of North Carolina

December 17, 1945

An action to recover the value of timber cut by defendant from a tract of land in Richmond County, owned by the plaintiff and known as the Lovin Tract containing about 284 acres. It is alleged in the complaint that the plaintiff sold to the defendant on April 9, 1940, all merchantable timber on a tract of land owned by her, known as the Morman Place, containing about 1,100 acres, but did not sell to the defendant any of the timber growing on the Lovin Tract; that thereafter, while defendant was cutting timber from the adjoining tract known as the Morman Place, his employees commenced cutting timber from the Lovin Tract, and the agent of the plaintiff told the employees of the defendant to stop cutting said timber, and thereafter the defendant represented to agent of the plaintiff that the cutting of the timber from the Lovin Place was a mistake, but that defendant would like permission to finish cutting the timber on the Lovin Place and that he, defendant, would pay plaintiff whatever the timber was worth, whereupon the plaintiff's agent gave the defendant permission to finish cutting the timber on Lovin Place; that the defendant cut from the Lovin Tract 129,500 feet of timber, worth $12 per thousand feet, mostly during the months of March and April, 1943, and that defendant had finished cutting timber on the Lovin Tract before the middle of April, 1943; that the defendant is indebted to the plaintiff for said timber in the sum of $1,554 with interest from 1 May, 1943, wherefore the plaintiff prays that she recover of the defendant said indebtedness, together with interest and costs.

The defendant in answer to the complaint avers that prior to April 9, 1940, he, defendant, sent his agent to look over the timber of the plaintiff and to learn the boundaries of the land upon which it was located; that the agent of the plaintiff rode around in an automobile with the agent of defendant and pointed out the boundaries of said land in a general way, and plaintiff's agent then sent a colored man with defendant's agent to point out specifically the boundaries of said land; that the defendant's trade and agreement with plaintiff's agent was 'to buy all merchantable timber on the land embraced within the boundaries thus pointed out to the defendant's agent first in a general way and subsequently specifically and in detail,' the dimensions of the timber to be the same as was described in the deed of April 9, 1940; that the defendant, through his employees cut and removed timber within the boundaries specifically designated and pointed out to defendant's agent, and on other land, and the defendant paid the plaintiff, or the plaintiff's mortgage creditors, the entire purchase price of said timber in accord with the agreement entered into by defendant with plaintiff's agent; that during the negotiation between the plaintiff's agent and the defendant the agent of the plaintiff did not mention that plaintiff owned and held the land under two separate deeds, or that there were two separate tracts of land, one known as the Morman Place and the other known as the Lovin Place, and if the description in the timber deed of April 9, 1940, omitted any of the lands theretofore pointed out to the defendant or to his agent, the omission of such land from the description in the aforesaid timber deed was due to mutual mistake of the parties thereto or to the mistake of the draftsman of said deed, or to the fraud of said agent of the plaintiff in pointing out or having pointed out to defendant's agent land other than that which is described in the said timber deed and to the mistake of the defendant; and that if the land pointed out to the defendant's agent as being the land upon which the timber was growing and which the defendant was to purchase from the plaintiff, contained two tracts, one known as the Morman Tract and one known as the Lovin Tract, and only the Morman Tract is described on said timber deed, the defendant is entitled to a reformation of the timber deed by the inclusion therein of said Lovin Tract in order to make the deed conform to the agreement between plaintiff and defendant, and defendant is entitled to a judgment ordering reformation of the timber deed accordingly; whereupon the defendant prays that the plaintiff recover nothing of the defendant and that her alleged cause of action be dismissed that if it be determined that the defendant or his agents cut and removed timber from lands not embraced in the description contained in the timber deed of April 9, 1940, but within the boundaries pointed out to the defendant's agent as the timber being sold to the defendant by the plaintiff, then that said deed be ordered reformed so as to include and embrace any land omitted from said deed which was pointed out to the defendant by the plaintiff's agent.

Issues were submitted to, and answered by, the jury as follows:

'1. Was the Lovin Tract of land omitted from the timber deed, from the plaintiff to defendant, executed on April 9, 1940, by mutual mistake of the parties and their agents, as alleged in the answer? Answer: No.

'2. Did the defendant agree with Mr. J. M. Ledbetter, as agent of the plaintiff, to pay for the timber cut from the Lovin Tract after a controversy had arisen about it? Answer: Yes.

'3. What amount, if any, is the plaintiff entitled to recover of the defendant for timber cut and removed from the Lovin Tract? Answer: $1,027.00, plus interest from May 1, 1943, until paid.'

From judgment that plaintiff recover of the defendant the sum of $1,027, with interest from May 1, 1943, until paid, together with costs as prescribed in the verdict, the defendant appealed, assigning errors.

Fred J. Coxe, of Wadesboro, and J. C. Sedberry, of Charlotte, for appellant.

George S. Steele, Jr., of Rockingham, for appellee.

SCHENCK Justice.

The first assignment of error set out in appellant's brief is exception No. 1, to the court's allowing the plaintiff, over objection by defendant, to introduce in evidence two paragraphs of a letter from J. M. Ledbetter (agent of plaintiff) to T. C. Coxe (defendant), dated June 30, 1943. The matter objected to in the letter is the statement that Mr. Hildreath, agent of defendant, made to J. M. Ledbetter that they would have to count the stumps to tell how much timber had been cut from the Lovin Tract and sawed along with timber cut from the Morman Place. Aside from the fact that this tends to corroborate Ledbetter, then a witness on the stand, it is admissible, inter alia, for the reason that the statement attributed to Mr. Hildreath in the letter was made in the capacity of agent of Mr. Coxe, the defendant, in the settlement of the timber dispute. It is well settled that admissions of an agent, when made in the course of his employment, are admissible in evidence. Calvert v. Alvey, 152 N.C. 610, 68 S.E. 153, 136 Am.St.Rep. 847; Salmon v. Pearce, 223 N.C. 587, 27 S.E.2d 647. Mr. Ledbetter testified substantially to the same effect without objection. The admission of similar evidence without objection waives the first objection. Owens v. Blackwood Lumber Co., 212 N.C. 133, 193 S.E. 219, and cases there cited. This assignment of error cannot be sustained.

The next assignments of error as set out and discussed in appellant's brief are Nos. 2, 3, 4 and 5 which are considered together, since they relate to having witness Irby testify to his opinion, and also to having him refresh his recollection from letters handed him when he as a witness had not indicated a desire to see such letters. These exceptions seem to be based upon two reasons, first, the lack of qualification of the witness to express an opinion, and second, upon allowing witness to refresh his recollection from the letters shown him, when there was no request made by witness to see such paper writings for the purpose of refreshing his recollection. On the first contention, that is, that the witness was not qualified to express an opinion, the witness testified that 'he had been in timber' all his life and had been a timber cruiser for 20 or 30 years, and that he had cruised timber for a number of people in a number of localities. While the witness Irby was never found by the court to be an expert 'it has also been found necessary to admit a class of evidence from non-expert witnesses, which is usually spoken of as 'opinion evidence,' where the facts as they appeared to the witness cannot clearly and adequately be reproduced, described and detailed to the jury.' 20 Am.Jur. 640, Evidence, s 769. 'The practical test for receiving or rejecting opinions of lay witnesses is that where the jury can be put into a...