94 S.E. 12 | N.C. | 1917
HOKE, J., concurring. This is an action upon a note, begun by the plaintiff's testator. Before his death, and at his instance, A. A. James, the president, and W. L. Fields, secretary of defendant company, were examined before the clerk, under Revisal, 865 and 866. Their testimony was taken down in writing by the clerk, said Morgan being present, and filed in the case. The plaintiff's testator filed his complaint, declaring upon the note. The answer alleged that the note was invalid as against the defendant, for the reason that it was an accommodation paper and without consideration, and for the further reason that its president, A. A. James, at the time of the execution of the note, advised said M. M. Morgan that the note was invalid as to the defendant company, because its rules and by-laws required all its notes to be countersigned by its secretary, which was not done in this case.
On the first trial the plaintiff's testator testified fully in regard to the whole transaction between him and A. A. James touching the execution of the note. There was a mistrial, and on the second trial M. M. Morgan having died, his administrator, J. D. Phillips, was made a party to the action. He put the note in evidence, proving the handwriting of James and the defendant's admission that James *584 was president when he executed the note. The defendant then offered in evidence the examination of James and Fields, taken before the clerk at the instance of Morgan, and upon objection by the plaintiff the examination was excluded.
The presiding judge found the following facts: "This case was tried before Judge W. J. Adams and a jury during the life of M. M. Morgan, which resulted in a mistrial, and in that trial M. M. Morgan testified as to the personal transaction and communication between himself and the said A. A. James, president of the defendant, touching the execution of the note sued upon. The evidence of the said Morgan was reduced to writing and is now in court as a part of the court file."
The defendant then called A. A. James as a witness to show the facts touching the execution of the note, but upon objection by plaintiffs he was excluded. The defendant then offered to show by its secretary that the note was not properly executed and that the defendant did not receive any consideration for the note. This was also excluded. The defendant then offered in evidence the entire testimony taken at the former trial, and it was excluded. The defendant then offered in evidence the examination of A. A. James and W. L. Fields, taken before the clerk, and the evidence of M. M. Morgan, subsequently given on the trial, which controverted the examination of James and Fields before the clerk. All of this was excluded, and the defendant excepted to the ruling in each instance.
The defendant also offered to show that while it had no (544) written rules and by-laws, it had verbal rules and by-laws, which forbade the execution of notes in its name, except when attested by the secretary, and asked the witness, A. A. James, to state whether or not the Interstate Land Company at any of its meetings adopted rules prior to the execution of this note, governing the execution of notes. This was excluded, and also evidence was offered by the defendant to show that the witness, A. A. James, advised Morgan that he did not have authority to execute the note, and that there was no consideration for it, and that it was executed as accommodation paper. All this was excluded, and defendant excepted.
The court charged the jury that if they believed from the evidence in the case that James signed the note sued on, it would be their duty to answer the issue "Yes, $2,000, with interest thereon from 10 January, 1912." From the verdict and judgment the defendant appealed.
It is true that the president of the corporation is ex vi termini its general agent. Bank v. Oil Co.,
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 defendant. We know of no reason why it was rendered incompetent under Revisal 1631. The object of that section (545) 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 *586
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,
This case differs from Bank v. Oil Co.,
In Matson v. Melchor,
When the testimony of the deceased party has been given and is available, then the reason for the application of statutes like (546) our Revisal 1631, does not exist. Marlatt v. Warwick,
New York Code, 821 is substantially the same as our Revisal 1631. InRice v. Mortey, 24 Hun. 143, the Court said: "Upon the trial the plaintiff was entitled to introduce in evidence his own examination, taken at the instance of the defendant, and the same was not rendered inadmissible by section 829 of the Code of Civil Procedure. The reason for the rule excluding such testimony is wanting. In the next place, Mortey himself called Rice as a witness in his own behalf, and the Code, sec. 881, provides that the deposition may *587 be read in evidence by either party at the trial." McDonald v. Woodbury, 30 Hun. 35.
New York has no statute just like our section 865, but it provides for the taking of the deposition of the adverse party, and says either partymay introduce it at the trial; and in Berdell v. Berdell,
In Rowland v. Pinckney,
In Neis v. Farquharsan,
It was held in Lear v. Smith, 6 Ky. L. 657 that "The deposition of a surviving party may be read in evidence upon the trial of an action, notwithstanding the death of the adverse party, where the deposition of both had been taken and the personal representative of the deceased upon the trial refused to introduce the deposition of the deceased."
The examination of the adverse party, under Revisal 865, is a substitute for the former bill of discovery, and as Revisal 867, provides that it may be read by either party on the trial, it is, like a deposition, de bene esse, in that it becomes "the evidence of the law." So to speak, it is "canned evidence," kept in cold storage, for it cannot be altered. In both, the testimony is subject to all valid objections taken at the time, and there is stronger reason for its competency at the trial, for, besides the express authority without any exception, in Revisal 867, that such testimony can be read "by either party at the trial," in the case of evidence (547)de bene esse the deposition is taken in favor of the party offering it, while in a bill of discovery it is taken at the instance of the adversary party.
Error.
HOKE, J., concurring.
Cited: Caldwell Co. v. George,