Charlotte Oil & Fertilizer Co. v. Rippy, 123 N.C. 656

Charlotte Oil & Fertilizer Co. v. Rippy

123 N.C. 656

| N.C. | 1898

A note in the sum of $430, signed "D. F. Bridges Company," payable to the plaintiff, was executed and delivered, the signature having been written by D. F. Bridges. This action is brought to recover of the defendant the amount of the note, the allegation in the complaint being that William Rippy, the intestate of the defendant, was one of the partners in the firm of D. F. Bridges Company. On the trial the plaintiff introduced D. F. Bridges himself, who said that he was a member of the firm. The witness was then asked who composed the firm of D. F. Bridges Company, the object of the question being *Page 455 to show that the intestate of the defendant was a member of the firm. An objection by the defendant was sustained and the plaintiff excepted.

His Honor's ruling was correct. The precise point was decided inLyon v. Pender, 118 N.C. 150. The same witness was then asked this question, "Outside of any transaction or communication with the deceased, do you know whether or not William Rippy was a member of the firm of D. F. Bridges Company?" to which an objection was interposed by the defendant and the objection sustained, and the plaintiff excepted. There was error in that ruling of his Honor. In Sykes v.Parker, 95 N.C. 232, the plaintiff sought by his own testimony to prove a partnership between himself and the intestate of the defendant. The conclusion of the Court there was that ordinarily and naturally it would be supposed that the witness got his information from a transaction or communication with the deceased, but that the contrary (659) might be shown. The Court in that case said: "This would be in the usual order of things. It might perhaps be possible that the plaintiff could have answered the question thus put to him without testifying to such a transaction or communication; but if he could, it ought to have appeared that he could in order to render his answers competent. He might have been interrogated as to the source of the information he had, pertinent to the matter inquired about, with a view to determine the question of the competency of such answers as he might make. He was competent to testify that he did not derive his information form a transaction or communication between himself and the intestate." The same principle of evidence is declared in Armfield v.Colvert, 103 N.C. 147. The question ought to have been allowed as a preliminary one to the further statement of the witness of any facts which tended to prove the partnership, outside of personal communications or transactions with the intestate. And if such evidence was found competent by the court, then it should have been submitted to the jury. The refused of his Honor to allow the question cut off such inquiry, and was equivalent to a ruling that the witness under no circumstances could testify as to the intestate's being a partner, even though he might have information about the same outside of any personal communications or transactions with the intestate.

The same witness was further asked, "Did you have any conversation with the administrator of the deceased in regard to the deceased's being a partner of the firm of D. F. Bridges Company? If so, give it." The defendant objected, and the objection was sustained. In general terms it is stated in Greenleaf on Evidence, sec. 179, that the admission of executors and administrators can be introduced (660) against themselves as to the representatives of the heirs, devisees, and creditors. But in our researches we have found no case where the *Page 456 admissions or declarations of an executor or administrator, disconnected with the settlement of the estate — some matter of administration — where introduced against him as such representative; and we think, therefore, that the question was too broad in its scope. The witness might have been asked if he had heard the administrator, in connection with the settlement of his intestate's estate and in relation to its indebtedness, say anything in connection with the intestate's liability for the debts of the partnership, and what was said.

We will not consider the charge of the court, for it is not necessary. It is erroneous in some material respects.

New trial.

Cited: Cox v. Lumber Co., 124 N.C. 82; Moore v. Palmer, 132 N.C. 970;Bonner v. Stotesbury, 139 N.C. 7; Hicks v. Hicks, 142 N.C. 233.