26 N.C. 110 | N.C. | 1843
Assumpsit to recover the balance of an account for goods delivered and work and labor done. The account was originally $203, but the *88 plaintiff had given credit on it for $158.84, leaving a balance due of $44.16. The action commenced by warrant before a single justice and was brought by successive appeals to the Superior Court, when the plaintiff declared on a special contract and also on the common counts.
On the trial the plaintiff produced a witness who testified that the plaintiff, upon an agreement with the defendant, furnished him unburnt bricks at the price of $3 per thousand, but he did not know how many were delivered nor the time when they were delivered. Another witness for the plaintiff proved that he assisted in burning the bricks, and that the plaintiff paid some money to the hands, but he did not know how much. The plaintiff's counsel then proposed to call the plaintiff (111) himself to prove the number of bricks delivered and the time when, and also some of the other items in the account, but this was objected to by the defendant (1) because a party could not prove an account upon a special agreement by his own oath; and (2) because the plaintiff's account was for more than $60. The court held that the evidence was inadmissible, and the plaintiff thereupon submitted to a judgment of nonsuit and appealed.
The plaintiff's warrant was for $44.16, and was brought to recover the balance of an account. On the trial, thee plaintiff, being unable to prove his account by other witnesses, offered to prove the same to the amount of $44.16 by his own oath, under the book debt law (Rev. Stat., ch. 58). This was objected to (1) because the contract was special, and (2) because the account which was rendered by the plaintiff was for more than $60. In an action of assumpsit, if a plaintiff is unable to sustain a count in his declaration on a special undertaking, he may nevertheless recover upon any of the common counts in the declaration which his evidence may fit. In the case before us, the plaintiff abandoned his special count, and then the evidence was offered by him to support the common counts in his declaration for goods sold, work done, and labor done. A magistrate has jurisdiction of all debts and demands of $60 and under "for a balance due on any special contract, note or agreement, or for goods, wares, and merchandise sold and delivered, or for work and labor done, or for special articles, etc." Rev. Stat., ch. 62, sec. 6. The plaintiff, we think, was a competent witness, under the book debt law, to prove the sale, delivery and price of any articles of goods or other items in his account for work and labor done to the amount of $60, as all the items in the account appear to bear date within two years of the date of the warrant, and he could not prove them (112) in any other way. The admission of the plaintiff in his account *89
that he had received of the defendant $158.84 must be taken together, for at the same time that admission was made the plaintiff also declared in his written account that he once had a just demand (which is set out in the case) against the defendant over and above his present demand, which said demand justly absorbed all the money received. The declarations of a party made at the same time must be taken as evidence altogether, as well those to discharge as those to charge him. The whole goes to the jury, and they may, if they think it proper to do so, give credit to one or more parts of the said declaration or declarations and reject the residue. But the whole declaration is admissible evidence. Walker v. Fentress,
PER CURIAM. Reversed.
(113)
