Wallace v. Grizzard

114 N.C. 488 | N.C. | 1894

Bun well, J.:

If the testimony of a witness is impeached he may be corroborated by showing that he has made similar statements about the transaction. “The purpose of such evidence is not to prove the principle facts to be established. It is intended to prop and strengthen a witness testifying in respect to such facts, in some way impeached, by showing his consistency in the statements he makes or the account he gives of the matter about which he testifies when and when not under oath. It tends to help his credibility just as does evidence of his good character or other evidence competent for such purpose.” State v. Whitfield, 92 N. C., 831. This rule applies though the witness is also a party. Bullinger v. Marshall, 70 N. C., 520; Sprague v. Bond, 113 N. C., 551. When, therefore, it was proposed to corroborate what the defendant and witness Gaskins had testified on the trial by showing by the defendant and witness Grizzard that the former had made to him a statement about the transaction in eontroversv it should have been allowed. The case states that “for the purpose of corroborating statements made by Gaskins while on the witness stand” the “defendant then proposed to ask the witness (G.rizzard) whether after he made the assignment to him Gaskins made any statement to him about the notes.” This was merely an offer to show that Gaskins had made to the witness statements about the payment or settlement of the notes about which the parties are here contending similar to the statement he had made on the witness stand. There was error in excluding the evidence, and because of this error there must be a new trial.

It is proper for us to say that we do not see how the fact that Shepherd & Co. 'were not preferred in the assignment made by Gaskins has any bearing on the matter here in controversy. The issue is, Were the notes paid by Shepherd & Co. to the Smith-Courtney Co., or to the banks for that company, or were they bought by Shepherd & Co.? It could not possibly facilitate the solution of this question to inquire why Gaskins, when he saw himself under the necessity of making a general assignment, preferred one creditor over another. His Honor should have told the jury, as the defendant requested, that the fact stated above had “no bearing on the case,” and thus have counteracted any possible impression made upon the minds of the jury by the remarks of plaintiffs’ counsel on this subject.

Whatever may have been the purpose of Shepherd & Co. at the time of the purchase of the engine by Gaskins from the Smith-Courtney Co., it is very evident that they paid the eleven notes which were charged against Gaskins in the account rendered, and did not purchase them. We find no evidence that the Smith-Courtney Co. intended to transfer these notes to Shepherd & Co. The fact that some of them wrere marked or stamped “paid” consists exactly with the conduct of all the parties. The cash which Shepherd & Co. paid out for Gaskins in the settlement of these notes was charged to him in the accounts just as was the cash paid out for merchandise. This was not an instance of a creditor holding two claims, one secured and one unsecured, and, as it seems to us, the cases of Vick v. Smith, 83 N. Cl, 80, and Jenkins v. Beal, 70 N. C., 440, have no application here. It seems rather to be a case of the application of payment in a running account according to the rule laid down in Boyden v. Bank, 65 N. C., 13; Jenkins v. Smith, 72 N. C., 296, and Lester v. Houston, 101 N. C., 605. When Shepherd & Co. chose to conduct this business as they did they unequivocally expressed their election to treat these notes as mere vouchers, to be used upon the settlement of the accounts between themselves and Gaskins, and not as valid, subsisting obligations of the latter. If there was no fraud or mistake the cancellation of the notes, the rendition of the accounts, and the tacit assent thereto by the debtor, made the balance stated the true debt between the parties. Hawkins v. Long, 74 N. C., 781. Thereafter their character as obligations for the payment of money could certainly not be revived without the consent of the maker Gaskins. And there seems no evidence of such assent unless it be found in the fact that when Shepherd & Co. in January, 1893, attempted for some reason to undo the effect of the accounting that had been done by them, and to separate what they were thus pleased to call the “locomotive account” from the other dealings, Gaskins did not object. We do not see that he was called upon to do so. The account then rendered showed that the notes were paid just as the accounts previously rendered had done.

New Trial.