Whitmire v. Heath
| Citation | 71 S.E. 313, 155 N.C. 304 |
| Case Date | May 24, 1911 |
| Court | United States State Supreme Court of North Carolina |
155 N.C. 304
71 S.E. 313
WHITMIRE.
v.
HEATH.
Supreme Court of North Carolina.
May 24, 1911.
1. Trial (§ 46*)—Reception op Evidence-Offer of Proof—Necessity.
Where the original defendant died, the exclusion of testimony as to what he said on a former trial was proper when it did not appear what was expected to be proven by this testimony, for the court must pass upon the competency and materiality of the evidence.
[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 115-117; Dec. Dig. § 46.*]
2. Evidence (§ 582*)—Testimony at Former Trial.
A witness cannot testify as to what another witness, now deceased, said at a former trial, unless he can state the substance of all his testimony.
[Ed. Note.—For other cases, see Evidence, Cent. Dig. § 2420; Dec. Dig. § 582.*]
3. Sales (§ 53*)—Fraudulent Representations—Questions for Jury.
In an action upon a note for the price of a horse, where the defense was that the seller had made false representations, evidence _ of false representations held to raise a question for the jury.
[Ed. Note.—For other cases, see Sales, Dec. Dig. § 53.*]
4. Sales (§ 52*)—Fraudulent Representations—Evidence—Admissibility.
Where the maker of a note, defended on the ground that it was given for the price of a horse which was sold with fraudulent representations, a postal written by the seller to the purchaser, telling him that he had a horse, a little thin, but mending fast, was admissible on the question of fraudulent representations.
[Ed. Note.—For other eases, see Sales, Cent. Dig. § 129; Dec. Dig. § 52.*]
5. Appeal and Error (§ 837*) — Review — Findings of Fact—Evidence.
Where written evidence' was improperly excluded, the appellate court in reviewing the propriety of taking an affirmative defense from the jury for lack of proof will consider this writing as if it were a part of the evidence.
[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 3262; Dec. Dig. § 837.*]
6. Fraud (§§ 13, 20*)—Deceit—Cause of Action—Requisites.
To create a right of action for deceit by false representations, there must be a false representation, which the party making knows to be false, and it must have misled the other party and induced him to enter the contract.
[Ed. Note.—For other cases, see Fraud, Cent. Dig. §§ 3, 17; Dec. Dig. §§ 13, 20.*]
Appeal from Superior Court, Transylvania County; Justice, Judge.
Action by T. T. Whitmire against J. N. Heath, as administrator of A. N. Heath. From a judgment for plaintiff, defendant appeals. Reversed and remanded
W. W. Zachary, for appellant.
Geo. A. Shuford, for appellee.
WALKER, J. This action was brought to recover the amount of certain notes given to the defendant for the price of a horse and other articles of personal property, and secured by a mortgage upon the property sold. The defendant in his answer alleged that
[71 S.E. 314]the plaintiff, at the time he sold the horse to him, had made false, fraudulent, and deceitful representations as to his age and qualities, stating that the horse was seven years old, when he was much older, and that he was sound and in good condition, except that he had distemper, but was better, though he still had a little of it. There was evidence for the defendant that the horse had a bad case of glanders, his nose sloughed, lumps appeared on him, and at times the odor...
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W. M. Ritter Lumber Co v. Montvale Lumber Co, (No. 586.)
...was properly excluded, as the witnesses were not able to give the substance thereof (Wright v. Stowe, 49 N. C. 516; Whitmire v. Heath, 155 N. C. 304, 71 S. E. 313); and besides, the deposition itself was not competent, as it had not been opened and passed upon, when it was destroyed, and ne......
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Fields v. Brown
...the scienter, and of every other element required to make the fraud actionable. The case in this respect is not unlike Whitmire v. Heath, 155 N. C. 304, 71 S. E. 313; Robertson v. Halton, 156 N. C. 215, 72 S. E. 316, 37 L. R. A. (N. S.) 298; Hodges v. Smith, 158 N. C. 256, 73 S. E. 807, and......
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Childress v. Nordman, No. 532
...it was made by Wyman or at the time it was acted on by the plaintiffs. Cofield v. Griffin, 238 N.C. 377, 78 S.E.2d 131; Whitmire v. Heath, 155 N.C. 304, 71 S.E. 313; Cash Register Co. v. Townsend, 137 N.C. 652, 50 S.E. 306, 70 L.R.A. 349; Ramsey v. Wallace, 100 N.C. 75, 6 S.E. 638; Lunn v. ......
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State v. Kiziah, No. 289.
...by the witness. Overman v. Coble, 35 N.C. 1; State v. Pierce, 91 N.C. 606; Boney v. R. R., 155 N.C. 95, 71 S.E. 87; Whitmire v. Heath, 155 N.C. 304, 71 S.E. 313. The same rule prevails in other jurisdictions. In re Pinney's Will, 27 Minn. 280, 6 N.W. 791, 7 N.W. 144. We said in the Whitmire......
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W. M. Ritter Lumber Co v. Montvale Lumber Co, (No. 586.)
...was properly excluded, as the witnesses were not able to give the substance thereof (Wright v. Stowe, 49 N. C. 516; Whitmire v. Heath, 155 N. C. 304, 71 S. E. 313); and besides, the deposition itself was not competent, as it had not been opened and passed upon, when it was destroyed, and ne......
-
Fields v. Brown
...the scienter, and of every other element required to make the fraud actionable. The case in this respect is not unlike Whitmire v. Heath, 155 N. C. 304, 71 S. E. 313; Robertson v. Halton, 156 N. C. 215, 72 S. E. 316, 37 L. R. A. (N. S.) 298; Hodges v. Smith, 158 N. C. 256, 73 S. E. 807, and......
-
Childress v. Nordman, No. 532
...it was made by Wyman or at the time it was acted on by the plaintiffs. Cofield v. Griffin, 238 N.C. 377, 78 S.E.2d 131; Whitmire v. Heath, 155 N.C. 304, 71 S.E. 313; Cash Register Co. v. Townsend, 137 N.C. 652, 50 S.E. 306, 70 L.R.A. 349; Ramsey v. Wallace, 100 N.C. 75, 6 S.E. 638; Lunn v. ......
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State v. Kiziah, No. 289.
...by the witness. Overman v. Coble, 35 N.C. 1; State v. Pierce, 91 N.C. 606; Boney v. R. R., 155 N.C. 95, 71 S.E. 87; Whitmire v. Heath, 155 N.C. 304, 71 S.E. 313. The same rule prevails in other jurisdictions. In re Pinney's Will, 27 Minn. 280, 6 N.W. 791, 7 N.W. 144. We said in the Whitmire......