21 S.E. 923 | N.C. | 1895
This is an action by plaintiff to recover damages for slander of his title to land. Plaintiff offered in evidence a deed from T. M. Ledford and wife to himself, and was then introduced to prove a sale of the land to one Isbell, and on stating that the sale was in writing the defendant objected to his speaking of the contents of the paper writing, and the objection was sustained. Plaintiff then introduced Isbell, who testified that he took the paper writing and assigned it to one Hoffman, of Detroit, Michigan. Plaintiff then offered to prove the contents of the paper writing. Defendant objected (876) and the objection was sustained. Plaintiff excepted to his Honor's ruling and submitted to a nonsuit and appealed.
It is a well settled principle of the law of evidence that where a transaction takes place between parties, which is reduced to writing and signed by them (or it may be otherwise assented to by them), and an action is brought to enforce this transaction, the written evidence must be produced or accounted for before other evidence is admissible as to the transaction. This rule is put upon the ground that the parties have agreed that the writing shall be the evidence of their contract or transaction. This learning is too familiar to call for citations to support it.
But this rule only obtains in actions between parties to the written evidence of the contract and where its enforcement is the gravamen — the grievance complained of — the substantial cause of the action. Burrill's Dictionary, 568; 1 Greenleaf Evidence, 366. This action is not between the same parties who made the written contract to sell the land. That was between the plaintiff and Isbell, and this action is between the plaintiff Carden and the defendant McConnell. The defendant McConnell is no party to this writing, and is in no way bound by it. And as he is not bound by it, as between him and the plaintiff, the plaintiff is not bound by it. If it binds one, it binds the other. And as it does not bind defendant, it does not bind the plaintiff. Reynolds v. Magness,
New Trial.
Cited: Archer v. Hooper,
(878)