McWilliams v. . Cosby

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, 18 N.C. 17. By the book debt law, the plaintiff is obliged to give all just debts, for he has so to swear. Then when he proves, by his own oath, items to the amount of $60 or under, forming the balance that appears due on the account, if the defendant claims the benefit of the credit as a payment of the items thus proved, the plaintiff must necessarily be competent to state in reply that those payments are not applicable to those items because they have been applied to others. It is true that the plaintiff cannot prove those others originally, so as to entitle him to recover therefor, if the ground of an action, because the value exceeds $60. But when the defendant examines him upon the point of the payment of his demand then sued for, it exists in the nature of the thing that he should be allowed to answer, if the fact be so that they are not paid for, and to tell the reason why. Of course, the credit of the statement is for the consideration of the jury. If the plaintiff be honest enough to confess the credit they will consider whether he has not also been honest enough to disclose truly its proper application.

PER CURIAM. Reversed.

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