White v. Evans

• Decision Date: 24 September 1924
• Docket Number: 102.
• Parties: WHITE ET AL. v. EVANS.
• Court: North Carolina Supreme Court

124 S.E. 194

188 N.C. 212

WHITE ET AL. v. EVANS.

No. 102.

Supreme Court of North Carolina

September 24, 1924

Appeal from Superior Court, Bertie County; Brown, Judge.

Action by J. H. White and another, trading as J. H. & J. E. White against M. E. Evans, administrator of J. W. Langdale deceased. Judgment for plaintiffs, and defendant appeals. New trial ordered.

Civil action to recover against the estate of J. W. Langdale for goods sold and delivered to Charles and Frank Langdale, sons of the deceased, it being alleged that the father of the two boys had become responsible, on his original promise, for the payment of the account.

Winston & Matthews and Craig & Pritchett, all of Windsor, for appellant.

Gillam & Davenport, of Windsor, for appellees.

STACY J.

This is an action brought by plaintiff against the administrator of the estate of J. W. Langdale to recover on an account for goods sold and delivered to Charles and Frank Langdale, sons of the deceased; it being alleged that the father of the two boys, during his lifetime, had agreed to become originally responsible for the account. Taylor v. Lee, 187 N.C 393, 121 S.E. 659.

J. E White, one of the plaintiffs, was permitted to testify that on one occasion he went to Frank Langdale and collected $25 on the account. He added: "I told him that I needed some money, and that his father had sent me to him." Motion by defendant to strike out this remark; overruled, and exception. It will be observed that this action is not against Charles and Frank Langdale. The administrator of the estate of J. W. Langdale alone is being sued. This bit of evidence permits the inference, and it was so argued to the jury, that the deceased, by sending the witness to his son for payment, thereby recognized his own liability for payment of the account. This necessarily involved a personal transaction or communication with J. W. Langdale, who is now dead, and such may not be offered as evidence against his administrator under C. S. § 1795.

In reply to this position, it is said the objectionable part of the testimony of the interested witness is also susceptible to exactly a contrary inference, namely, that the deceased sent the witness to Frank Langdale for collection of the account because he did not recognize any personal responsibility for its payment. It is therefore contended that, even if objectionable, the admission of such evidence was harmless, as the jury...