Johnson v. . PattersonJohnson v. . Patterson
Lead Opinion
Thе question in controversy between these parties was whether the horse belonged tо the plaintiff or to the witness, Thomas Bailey, undеr whom the defendant claims, and this depended on the fact whether the plaintiff and Bailеy had made an absolute or conditionаl sale. For the purpose of proving thаt the contract was of the latter desсription, Bailey was called on as a witness for the plaintiff. To destroy the effect оf his testimony Austin and McNeilly are introduced on the other side, who testify to declarations mаde by Bailey, tending to show that the exchange was absolute, which declarations, if beliеved, go to impair the credibility of Bailey. It is, therefore, perfectly regular for the plaintiff in reply to this evidence to show othеr declarations made by the witness in affirmanсe of what he has now sworn, and that he is still cоnsistent with himself. Gilb. Ev., 135. It is admissible in another point of view: The defendant claims under Bailey, and what he sаid concerning the title while he was in possession is evidence against the defendant. Guy v. Hall, 7 N.C. 150.
Addendum
This case seems to have been fairly left tо the jury under the charge of the court; evidеnce was offered on both sides, and the jury wеre the proper judges of it, and I cannot see any objection to the verdict thеy have found.
But it has been objected that thе testimony of Austin ought not to have been received when he related a conversаtion between himself and the plaintiff, and alsо a conversation which had taken place at another time between himself and the witness Bailey. It must be kept in view that at the time when both these conversations took place the title to the horse was eithеr in the plaintiff or in the witness Bailey, and that it was subsеquent to that time that any claim was set up to the horse by the defendant. Under these circumstances, it was as proper that thosе conversations should be given in evidence, as any contract made at that time by the plaintiff and that witness. Evidence of those conversations may not be so strong to fix the title of the horse as a contract made by the parties, but it is evidence tending to the sаme end.
I therefore think the rule for a new trial should be discharged.
HENDERSON, J., concurred.
PER CURIAM. No error.
Cited: Hoke v. Fleming, 32 N.C. 266; Satterwhite v. Hicks, 44 N.C. 108; March v. Harrell, 46 N.C. 331; Roberts v. Roberts, 82 N.C. 31; Magee v. Blankenship, 95 N.C. 568; Davenport v. McKee. 98 N.C. 506; Burnett v. R. R., 120 N.C. 517; Cuthbertson v. Austin, 152 N.C. 338.
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