171 S.E. 96 | N.C. | 1933
The plaintiff instituted this action to recover the amount alleged to be due on two promissory notes, the first of which is as follows:
"$2,000.00. Philadelphia, Pa., 5/15/1930.
After date I promise to pay to the order of M. Stein, two thousand and 00/100 dollars at 4822 N. 10th St., city.
Value received with interest at 6% per annum. No....... Due........
B. J. Levins."
The other note is identical in form except as to the amount, which is $2,000.
The defense pleaded is a total failure of consideration in that the notes were executed solely as an accommodation to the plaintiff or for the temporary purpose of enabling the plaintiff to borrow money or procure credit.
The jury returned the following verdict:
1. Is the defendant indebted to the plaintiff on the notes set forth in the complaint, and if so, in what amount? Answer: Nothing.
Judgment for defendant; appeal by plaintiff for assigned error. The following questions and answers appear in the deposition of Joseph Singer:
"Q. Did you ever have any conversations with Mr. Levins concerning this matter? Answer: I did.
Q. Will you tell us what took place? Answer: I tried to get the two of them straightened out, being that they were such good friends so long, and I tried to get the matter thrashed out, and Mr. Levins said he made Stein an offer and he was willing to stick to that offer, not a nickel more.
Q. Do you know the amount of that offer? Answer: Yes.
Q. What was the amount? Answer: $1,000." *304
At the time the deposition was offered in evidence neither party objected to this testimony, but afterwards the defendant's counsel made a motion to strike it from the record. The motion was granted and the plaintiff excepted.
In our opinion the court committed no error in allowing the motion. It is elementary that evidence of an unaccepted offer of compromise is not admissible. Almost a century ago the principle was stated in an opinion byGaston, J., in Poteat v. Badget,
In a later opinion this Court remarked that "an offer to compromise a demand is no admission of its rightfulness." Smith v. Love,
The plaintiff concedes the principle but takes the position that the excluded testimony contains the statement of a fact which is entirely independent of the rejected offer and was therefore competent. The question proposed by the plaintiff arose in Daniel v. Wilkerson,
If the plaintiff had proposed to show by Singer that the defendant had made to the plaintiff an unaccepted offer of settlement, the testimony would have been inadmissible because in law the offer would not have been an admission of the defendant's indebtedness. We perceive no sound or satisfactory reason for concluding that the defendant's statement that he had made an offer which in law was not an admission was itself an admission of his liability to the plaintiff. The evidence was incompetent.
That the presiding judge had the power to withdraw the evidence is unquestionable and the time when he should hear the motion was a matter addressed to his discretion. Cooper v. R. R.,
The plaintiff requested the court to instruct the jury that as the defendant admitted the execution of the notes and contended that they were given only for the plaintiff's accommodation, the burden was on the defendant to satisfy the jury by the greater weight of the evidence that the notes were given without valuable consideration and only for the accommodation of the plaintiff, and if the defendant failed so to satisfy the jury, the answer to the issue should be "$4,007.50"; otherwise "Nothing."
The plaintiff introduced the notes which, reciting "value received," were made payable to the order of the plaintiff. Being negotiable they imported a valuable consideration. C. S., 2982, 3004; Hunt v. Eure,
This instruction is in accord with the later decisions of this Court. It is a fundamental rule of evidence that the burden is on the party who asserts the affirmative of the issue. Walker v. Carpenter,
The later decisions stress the fact that the defendant was not required to rebut the prima facie case by the greater weight of the evidence, Huntv. Eure,
In the defendant's brief it is intimated that his admission of the execution and delivery of the notes would have entitled the plaintiff to a verdict on the pleadings and that the burden of proof necessarily devolved upon the defendant. When matters directly in issue are admitted it is not necessary to offer the admission in evidence, but allegations or admissions of matters which are independent of and collateral to the issues raised by the pleadings are available as evidence only when introduced. McCaskill v.Walker,
The question whether a witness whose deposition was taken by the plaintiff and offered by the defendant was a witness for the plaintiff was a subordinate feature of the trial concerning which no instruction was essential in the absence of a written request to that effect. S. v. O'Neal,
No error. *307