145 S.E. 244 | N.C. | 1928
Plaintiff instituted an action against the defendant in the court of a justice of the peace to recover the sum of $100 upon a stock subscription note for one share of stock in plaintiff corporation. The defendant admitted the execution of the note, but alleged that the note was secured by the plaintiff in a stock-selling scheme in violation of the Blue Sky law in that the plaintiff procured the Hockenbury System to sell said stock wrongfully. The plaintiff offered evidence tending to show that the stock of plaintiff was sold by citizens to various people in Burlington, *266 including the plaintiff, in pursuance of a patriotic and local pride undertaking to secure a hotel, and that these citizens who sold said stock received no compensation for their services whatever, and that the Hockenbury System solicited no stock subscriptions and sold no stock, but were employed for the purpose of advertising the project and of instructing, counseling and supervising teams of citizens who actually sold the stock. Mr. C. C. Haworth sold the stock in controversy to plaintiff. There was no evidence that Mr. Haworth received any compensation from any source whatever for the sale of said stock. The trial judge peremptorily instructed the jury to answer the issue of indebtedness in favor of the plaintiff.
From judgment upon the verdict the defendant appealed. Is a pleading or solemn admission put in the record by the pleader's attorneys admissible in evidence against the pleader in a suit by the pleader against a third party involving the same question?
The defendant offered in evidence excerpts from the agreed statement of facts signed by counsel for plaintiff and constituting a part of the record in the case of Burlington Hotel Corporation v. Bell. This agreed statement of facts admitted that the Hockenbury System was employed to sell stock and receive a commission upon such sales. The plaintiff objected to the admission of this evidence, and the objection was sustained. In HotelCorporation v. Bell,
The courts generally hold that a pleading containing an admission is competent against the pleader, in a subsequent case, on behalf of a stranger. The rulings of courts of last resort upon the subject are assembled in 14 A.L.R., p. 56. In this State the question was first considered in Kiddie v. DeBrutz,
However, while it is competent to introduce pleadings or solemn admissions as defined by law as evidence, nevertheless the admissions so admitted are not conclusive. The party making such admissions has the legal right to show, if he can, that they were made under misapprehension or by inadvertence or mistake, or for the purpose of dispensing with formal proof, or that they were made for the purpose of presenting a particular point in the particular case under consideration. Mason v. McCormick,
The plaintiff relies upon the case of Eigenbrun v. Smith,
The exclusion of the evidence so offered by the defendant was error warranting a
New trial. *268