Whitmire v. Heath

Citation71 S.E. 313,155 N.C. 304
CourtUnited States State Supreme Court of North Carolina
Decision Date24 May 1911
PartiesWHITMIRE. v. HEATH.

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 thatthe 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 emitted from his body and nose was very offensive. He was also lame and was gradually weakened by his disease, so that he became worthless. Without entering more into particulars, we may safely say that there was sufficient evidence to show the falsity of the warranty and the deceit, provided the plaintiff made the alleged representations, and the case turns upon the sufficiency of the evidence to establish this fact. The defendant introduced the written "recommendation" of the horse by the plaintiff, which was given to A. N. Heath, dated May 26, 1910, at the time of the sale, and which reads as follows: "I have owned the horse six months. He has been at home during that time about four weeks. He has had the distemper during that time, and appears to have it a little yet. As to his eyes, they are good so far as I know. His working qualities are good, and if wind-broken he has never shown it in the least; and if affected with any internal disease I do not know it. I bought the horse from Hawe Galloway, and he recommended him to be sound except the distemper. T. W. Whitmire. Witness: D. L. English." Defendant then introduced a postal card, mailed to A. N. Heath by the plaintiff, of which the following is a copy: "Brevard, 5-25-1905. Dear Sir: Your card received. Will say in reply that I have a black horse 7 years old, a little thin, but mending fast. I would sell, but you will have to come and look at him before I would make you a price. T. W. Whitmire." The court, upon objection by the plaintiff, excluded the card, and defendant excepted. The original defendant, A. N. Heath, having died, the present defendant, J. N. Heath, his father and administrator, was made a defendant. The execution of the notes being admitted, the court held that the defense had not been made out by the evidence, and gave judgment for the plaintiff. Defendant appealed.

The defendant proposed to prove by a witness what A. N. Heath had testified at a former trial of the case, which was excluded by the court, and exception again taken. It did not appear what he expected to prove by this witness was said by A. N. Heath—that is, the nature or substance of the evidence—so that the court could see that it was...

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19 cases
  • W.M. Ritter Lumber Co. v. Montvale Lumber Co.
    • United States
    • North Carolina Supreme Court
    • May 25, 1915
    ... ... Cook 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, ... ...
  • Fields v. Brown
    • United States
    • North Carolina Supreme Court
    • October 23, 1912
    ...and 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, L. R. A. (N. S.) 298; Hodges v. Smith, 158 N.C. 256, 73 S.E. 807, and same......
  • Childress v. Nordman
    • United States
    • North Carolina Supreme Court
    • December 2, 1953
    ...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. ......
  • State v. Kiziah
    • United States
    • North Carolina Supreme Court
    • April 10, 1940
    ...prove 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. 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 Whitmi......
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