Sumner v. Candler

• Decision Date: 28 February 1885
• Citation: 92 N.C. 634
• Court: North Carolina Supreme Court
• Parties: J. B. SUMNER, Adm'r, v. T. J. CANDLER.

92 N.C. 634

J. B. SUMNER, Adm'r,

v.T. J. CANDLER.

Supreme Court of North Carolina.

February Term, 1885.

This was a CIVIL ACTION, tried before Graves, Judge, at Spring Term, 1885, of BUNCOMBE Superior Court.

The action was brought to recover from the defendant, the amount of certain claims against the State of North Carolina, drawn on the Treasury of the State, which the defendant drew from the said treasury, to the use of the plaintiff. The defendant relied upon the plea of accord and satisfaction. On the trial the plaintiff introduced himself as a witness and testified as follows: “I went over to Stephens' mill with my father and passed the mill, going towards Candler's house, and met him on a horse with a turn of grain. Candler said his wife had hunted for the receipts; that he would let my father have the horse, bridle and saddle, and the order for the two hundred dollar claim.” On cross-examination he said he had been prosecuting this suit. Jesse Sumner, son of the plaintiff's intestate, was then introduced by the plaintiff, and testified as follows: “I am the son of Jesse Sumner, who died about August 8th, 1878. About 1875 I saw Jesse Sumner and Candler together. They were at the steps of the Roberts building in Asheville. I said to my father, “Let's go home.” Candler said, “I will hunt the receipts.” Sumner said, he must get the receipts, he did not want the receipts. My father said, he would take the horse, bridle and saddle and suit of clothing for the claim, and Candler was to get up the receipts for the claim; said if he did get the receipts, he could get a proper voucher from the treasurer, and it would be all right. He had been a witness all the time. This was the first time he had been sworn.”

The defendant introduced himself as a witness and testified as follows: “I have heard the testimony of John Sumner, the plaintiff. Nothing occurred at the mill; on the 18th day of February, 1875, I met John Sumner and his father. Never was a word mentioned on the subject in the presence of John at that place or any other place.”

At this point the defendant offered to assign the reason why nothing was said, and the plaintiff objected. The court said the defendant might testify as to the transaction or communication with deceased, about which the plaintiff, his administrator, had testified, but not as to any other transaction or communication with the deceased. The defendant excepted. The witness then testified that the witness, the plaintiff, was not at the house of John Hendrix.

The defendant then offered to testify in regard to the matter testified to by Jesse Sumner, son of deceased; objected to, objection sustained, and defendant excepted.

The defendant then offered himself as a witness to testify for all purposes. Plaintiff objected; objection sustained, exception by the defendant. There was a verdict and judgment for the plaintiff, and the defendant appealed.

Messrs. Theo. F. Davidson and J. H. Merrimon, for the plaintiff .

Messrs. McLoud & Moore, for the defendant .

ASHE, J. (after stating the facts).

The first exception taken by the defendant was to His Honor's refusal to allow the testimony of the defendant, as to the reason why nothing was said when he and the plaintiff's intestate met near the mill. There was no error in the ruling of His Honor in that respect. He told the witness, he might testify as to the transaction or communication with the deceased. The fact that the witness did not proceed to testify, was evidence that what he proposed to say was not about the transaction or communication that was...