Cuthbertson v. . Austin

Apr 13, 1910

Versions:152 N.C. 336

67 S.E. 749

1910 N.C. LEXIS 269

Manning, J.

The first four exceptions are taken to his Honor’s permitting the plaintiff to give in evidence offers to *337 him for tbе several traots of laud included in tbe mortgage to tbe defendant, wbieb offers were communicated to tbe defendant. Tbe aggregate amount of these offers was more than sufficient to pay tbe mortgage debt, and tbe offers were made by persons able to comply therewith. Tbe defendant declined to permit plaintiff to make any of tbe sales, by refusing to release tbe lien of tbe mortgage to tbe purchаser. Tbe evident purpose of this evidence was to show that tbe defendant was pursuing a scheme, not so much to obtain payment of tbe amount legally' due him, as to acquire plaintiff’s land by oppressive methоds. There was evidence, which tbe jury has found to be amply sufficient to sustain tbe charge of tbe plaintiff, that tbe defendant took advantage of bis condition by knowingly taking, receiving and reserving a greater rate of interest than is permitted by law.

Involved in tbe charge of usury, is tbe idea of illegal advantage or oppressiоn, and we do not see why it is not competent to offer testimony of dealings or communications ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍between tbe parties, which tend to strengthen this element in tbe charge. We do not think tbe admission of tbe evidence еxcepted to was reversible error.

Tbe fifth and sixth exceptions are taken to bis Honor’s ruling, permitting tbe plaintiff to testify that be told bis wife and one T. E. James, at the time of tbe loan, the rate of interest tbe defendаnt was charging him, and to tbe testimony of James, that tbe plaintiff told him, as testified to by him. This was admitted as corroborаtory of plaintiff and was restricted by bis Honor to this purpose, and so explained to tbe jury. Tbe evidencе was objected to by defendant, for tbe reason that tbe credibility or character of tbe witness bad nоt been attacked, but there was evidence contradicting him, to wit, tbe testimony of tbe defendant. Both plaintiff and defendant offered, without objection, evidence of their good character.

Tbe defendаnt’s argument proceeds upon tbe theory that contradiction was not an attack upon tbe crеdibility of the witness —was not an attempt to impeach him. Tbe precise question was presented in Bullinger v. Marshall, 70 N. C., 520, in which case Pearson, G. J., said: “First, tbe рlaintiff was introduced as a witness in bis own behalf, and swore that, a,t tbe time of tbe sale, tbe defendant said: ‘The mule was sound, as far as be knew, but did not tell him tbe mule bad bad tbe sweeny.’ Here was a direct ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍contradiction. Tbe рlaintiff, by way of corroborating bis testimony, was allowed to prove that soon after tbe sale and aftеr tbe unsoundness of tbe mule bad become apparent, tbe plaintiff, in a conversation with tbe witness, .in detail *338 ing* the circumstances of the trade, told him that the defendant had not disclosed the fact ‘that the mule had had the sweeny.’ We concur with his Honor in the opinion that this testimony was admissible.”

In Roberts v. Roberts, 82 N. C., 29, Chief Justice Smith. speaking to this question, said: “The admissibility of similar and concurring statements previously made by a witness to sustain his assailed testimony and strengthen confidence in the 'accuracy of his memory and the truthfulness of his evidence, has been so often declared in numerous cases before the Court, from Johnson v. Patterson, 9 N. C., 183 (decided in 1822), down to the recent case of Jones v. Jones, 80 N. C., 246, and the rule so thoroughly settled and so often recognized and aсted on, as to make a citation of authorities entirely needless. We do not propose now tо review them, because in England ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and in. New York, and perhaps other States, this species of evidence is received under restrictions and modifications not recognized in this State. We will only say that in Bullinger v. Marshall, 70 N. C., 520, as in our case, the testimony of the respective parties was in direct conflict, and to corroborate that of plaintiff, he was allowed to show correspondent representations made shortly after the facts occurred.” March v. Harrell, 46 N. C., 329; Burnett v. R. R., 120 N. C., 517. In this lаst case the cases decided by this Court upon this question are collected by Ciarle, J. In section 1127, 2 Wigmore on Ev., and in the note under this section, the eminent author recognizes the lack of unanimity' in the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍decisions of the courts on this question, and cites many cases in accord with the uniform holding of this Court. The case of S. v. Parrish, 79 N. C., 610, is urged upon our attention as laying down a different rule. In the case of the witness in that case, who sought to be corroborаted by previous statements, the Court says: “He was not cross-examined, not contradicted, his character not assailed, nor was he in any way impeached, but stood before the court as any other witness, upon his merits.” It was held there thаt the evidence was not admissible. In the present case, the witness was cross-examined; he was contrаdicted; and he was permitted, without objection, to prove that his character was good. Under the cases cited, we do not think his Honor erred in admitting the evidence.

The other assigned errors are to his Honоr’s charge. We have read it carefully, and we do not think the defendant has any just ground of complaint. It seеms ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the defendant requested no special instructions to be given upon any particular phase of thе law applicable to the evidence, and we see no error in *339 tbe charge given. The record stated that his Honor carefully stated the contentions of the parties. The questions involved were almost entirely matters of fact to be ascertained by the jury. These facts have been found against the defendant, and we discover no error in the trial. The judgment is affirmed.

No error.