Phillips v. Interstate Land Co.

Nov 14, 1917
Versions:174 N.C. 542
94 S.E. 12
1917 N.C. LEXIS 137
Clark, C. J.

It is true that the president of the corporation is ex vi termini its general agent. Bank v. Oil Co., 157 N. C., 307; Davis v. Ins. Co., 134 N. C., 60. But his authority may be restricted by the by-laws of the corporation or its charter, and when the authority of the president to bind the corporation is challenged, his authority can be shown by proof, and it should be left to the jury to determine from the evidence whether the power exercised by the president was restricted in this case by its by-laws (Bank v. Bank, 10 Wallace, 644), and it was error to exclude evidence of such by-laws, and that M. M. Morgan had notice of such restriction. It was also competent as between the parties to show that there was no consideration for the note, and that it was merely accommodation paper. Revisal, 865, under which James and Fields, the president and secretary, were examined as adversary parties, at the instance of Morgan, it is true, did not make them witnesses for the plaintiff (Coates v. Wilkes, 92 N. C., 386; Shober v. Wheeler, 113 N. C., 377), nor did it compel the plaintiff to use such testimony on the trial (Shober v. Wheeler, 113 N. C., 370), but Revisal, 867, provides: “The party to be examined under the preceding sections may be compelled to attend in the same manner as a witness who is to be examined conditionally, and the examination shall be taken and filed by the judge, clerk, or commissioner, in like manner, and may be read by either party on the trial."

If, therefore, M. M. Morgan had been living at the second trial, from which this appeal is taken, the above evidence of James and Fields, taken under Revisal, 865, could have been read in evidence for the *545 defendant. We know of no reason why it was rendered incompetent under Revisal, 1631. The object of that section is to close the mouth of a witness who is a party to the cause, or interested in its event, as to the transaction or a communication with a deceased adverse party, because the other party has no opportunity to be heard. But in this case the examination was taken by the instance of Morgan, who was present thereat, with opportunity to cross-examine the adversary witnesses, and he testified himself, and all the evidence duly taken down at such examination, both that of Morgan and of James and Fields, was offered in evidence in this case, and should have been admitted.

Furthermore, Morgan himself testified at the former trial, and it was error to exclude evidence of his testimony at that trial, coupled with the evidence of James and Fields.

The examination of W. L. Fields and his testimony as to the by-laws of the company was competent, even though that of James was excluded, for he was not a party to the transaction, but an agent, and, besides, was offered to testify as to matters which were not a transaction or communication between Morgan and the defendant. When objection is general, if any part of the evidence is competent and the incompetent part is not singled out, it is error to exclude. S. v. Ledford, 133 N. C., 722, citing Barnhardt v. Smith, 86 N. C., 479; Smiley v. Pearce, 98 N. C., 187; Hammond v. Schiff, 100 N. C., 175; 4 Jones Evidence, sec. 691; Smith v. McGregor, 96 N. C., 111.

'This case differs from Bank v. Oil Co., 157 N. C., 302, in several material respects. In that case the note had been assigned to plaintiff, before maturity, for value, and there was no notice that it was without consideration or that the president had no authority to sign without the signature of the secretary, and the transaction was in the ordinary course of business. There was evidence in this case that Morgan knew of this defect when he took the note from James; that there was no consideration ; the transaction was not in the ordinary course of business, and the action is between the original parties.

In Matson v. Melchor, 42 Mich., 477, the deposition of the plaintiff, taken before the death of the defendant and relating to a personal transaction between them, was held'competent. In Coughlin v. Haeussler, 50 Mo., 126, it is held: “Where the testimony of both parties, given at the first trial, is preserved in a bill of exceptions, the minutes of the testimony of either party so recorded may be given in evidence at the second trial, in case of his death in the meantime; consequently, the surviving party may then testify, although the counsel for the deceased party refused to put in the evidence the minutes of his former testimony.”

When the testimony of the deceased party has been given and is avail *546 able, then the reason for the application of statutes like our Revisal, 1631, does not exist. Marlatt v. Warwick, 19 N. J. Eq., 439; Galbraith v. Zimmerman, 100 Pa. St., 374. “Tbe evidence of the deceased plaintiff on a former trial being admissible, the reason of the statute excluding one party to the action from testifying ceasing, the living party is competent.” O’Neal v. Brown, 61 Texas, 34.

New York Code, 821, is substantially the same as our Revisal, 1631. In Rice v. Mortey, 24 Hun., 143, the Court said: “Upon the trial the plaintiff was entitled to introduce in evidence bis own examination, taken at the instance of the defendant, arid the same was not rendered inadmissible by section 829 of the Code of Civil Procedure. Tbe reason for the rule excluding sucb testimony is wanting. In the next place, Mortey bimself called Rice as a witness in bis own bebalf, and the Code, sec. 881, provides tbat the deposition may be read in evidence by either party at the trial.” McDonald v. Woodbury, 30 Hun., 35.

New York bas no statute just like our section 865, but it provides for the taking of the deposition of the adverse party, and says either party may introduce it at the trial; and in Berdell v. Berdell, 86 N. Y., 519, the Court says: “A party whose deposition bas been taken before trial, at the instance of an adverse party, bad the right, if be desire it, to read sucb deposition in evidence on the trial on bis own bebalf. Code, 881.”

In Rowland v. Pinckney, 8 Miss., 458, it is said: “Tbe deposition of a witness, taken before tbe death of one of tbe parties, is not inadmissible on tbe trial, under section 829 of. tbe Code.”

In Neis v. Farquharsan, 9 Wash., 508, it is said: “Death of a party to an action, and substitution of bis legal representative, subsequent to tbe commencement of a suit against him, will not render inadmissible in evidence tbe deposition of an adverse party in interest, when at tbe time sucb deposition was taken tbe testimony of tbe witness was competent.”

It was held in Lear v. Smith, 6 Ky. L., 657 tbat “Tbe deposition of a surviving party may be read in 'evidence upon tbe trial of an action, notwithstanding tbe death of tbe adverse party, where tbe deposition of both bad been taken and tbe personal representative of the deceased upon tbe trial refused to introduce tbe deposition of tbe deceased.”

Tbe examination of tbe adverse party, under Revisal, 865, is a substitute for tbe former bill of discovery, and as Revisal, 867, provides tbat it may be read by either party on tbe trial, it is, like a deposition, de bene esse, in tbat it becomes “tbe evidence of tbe law.” So to speak, it is “canned evidence,” kept in cold storage, for it cannot be.altered. In both, tbe testimony is subject to all valid objections'taken at tbe time, and there is stronger reason for its competency at tbe trial, for, besides tbe express authority without any exception, in Revisal, 867, tbat sucb *547 testimony can be read “by either party at tbe trial,” in tbe case of evidence de bene esse tbe deposition is taken in favor of tbe party offering it, while in a bill of discovery it is taken at tbe instance of tbe adversary party.

Error.

Hoke, J., concurring.