17 S.E. 536 | N.C. | 1893
The same case upon a former appeal is reported in
One of the issues submitted to the jury by the court was as follows: "Was W. E. Watkins authorized to draw and accept said bill of exchange for the defendant company?" There was verdict for the plaintiff, (752) and from the judgment thereon defendant appealed.
The plaintiff's action is founded upon a draft drawn in his favor by W. E. Watkins for the sum of $950 and accepted by said Watkins in the name of the defendant corporation. It was necessary to the establishment of his claim that plaintiff should prove that Watkins had authority to bind the defendant in this manner. In his effort to do this he was allowed on the trial, notwithstanding the objection of defendant, to introduce the declarations of the president and general manager of defendant company, made after the alleged acceptance, to the effect that Watkins had authority so to contract for the defendant. This was not proper. Smith v. R. R.,
It appears from the statement of the case on appeal that some of the declarations of the president of defendant company, as to the authority of Watkins to accept this draft, as we understand the record, were contained in a letter written by him, and the objection was made that the contents of the letter should not be spoken of, because it was not produced, nor was its nonproduction properly accounted for.
If the contents of this letter were relied on by plaintiff merely as a declaration by the president that Watkins had authority to accept the draft, they were incompetent whether the letter was produced or not, for the reasons above stated.
If its contents were to be used as proof of a contract on the part of the company that it would acknowledge and pay the draft, then it was *500 very clearly improper to allow the witness to speak of the contents, the letter not being produced, unless its loss was accounted for according to the rules of law, for, in that view of the matter, this was to allow parol testimony to establish what was contained in a written agreement without first proving that the writing was lost or destroyed.
(754) Inasmuch as the defendant is entitled to a new trial for the error above pointed out, we do not deem it necessary to consider any other of the numerous exceptions taken by its counsel.
NEW TRIAL.
Cited: Egerton v. R. R.,