Bell v. Murchison National Bank

Adams, J. The defendant applied for an'order to require the plaintiff to appear before the clerk of the Superior Court and to submit to an examination before trial as provided in section 901 of Consolidated Statutes. The order was made and the plaintiff was examined before a commissioner, but when the defendant offered the examination in evidence the plaintiff objected to its introduction on the ground that the affidavit was not sufficient to support the order. This Court has held that the application for an order of examination should be under oath, should set forth the nature of the action, and should aver that the desired information is not accessible to the applicant and that the examination is material -and necessary; also that the application must be made in good faith and must not be perverted from its lawful purpose *236 into a means of harassing or oppressing the opposing party under the guise of a fair examination. Chesson v. Bank, 190 N. C., 187; Bailey v. Matthews, 156 N. C., 78. The two objections urged by the plaintiff are that the affidavit does not show that the examination was necessary and material and does not set forth with particularity any papers or documents claimed to bo essential to the defense. The mere statement that an examination is necessary and material is not sufficient; the averments must be positive, and not argumentative. Evans v. R. R., 167 N. C., 415; Mica Co. v. Express Co., 182 N. C., 669. The defendant’s affidavit is not subject to either of these two objections. It alleges that it is impossible for the defendant to get the necessary information from any person except the plaintiff because all other persons who have such information are not accessible to the defendant and are not within the jurisdiction of the court. The construction of section 901 should not be so limited or circumscribed as to preclude the examination of an adverse party when the affidavit shows good faith and the necessity and materiality of the desired information. Smith v. Wooding, 177 N. C., 547; Whitehurst v. Hinton, 184 N. C., 12. As to the second objection it may be said that while a “roving commission for the inspection of papers” will not ordinarily be allowed, the defendant’s affidavit referred to papers which were under the exclusive control of the plaintiff,- which related to the immediate issue in controversy, and which manifestly could not be definitely described or particularly set forth. R. R. v. Power Co., 180 N. C., 422; LeRoy v. Saliba, ibid., 16. The-first assignment of error is without merit, the second and third are abandoned, and the fourth involves a hypothesis as well as the assumption that it was the defendant’s legal duty to notify the plaintiff of nonendorsement by the payee. The proposed testimony which is the subject of the fifth in part at least essentially rests upon hearsay; and the sixth, if sustained, would be equivalent to permitting the witness to interpret the alleged contract. One of the principal controversies between the parties was whether the Mizner Development Company and the Boca Raton Resales Corporation were substantially one organization, or, if different organizations, whether they conducted a joint enterprise. The jury were instructed that as the defendant admitted that it had paid the check without the payee’s endorsement, it must bear the burden of satisfying the jury that the payee had received the proceeds of the check or that the proceeds had been applied as the plaintiff intended; and that if the bank had paid the check without proper endorsement and had satisfied the jury by the greater weight of the evidence that the proceeds had been *237 paid to the Mizner Company and bad been applied as a credit on the purchase price, the plaintiff could not recover because she admitted that the check had been drawn as part payment of the price agreed on. McKaughan v. Trust Co., 182 N. C., 543; Dawson v. Bank, ante, 134; 7 C. J., 686, sec. 414. The plaintiff concedes that this instruction is correct as an abstract proposition, but contends that there was no evidence on which it could be sustained. Upon inspection of the record, however, we are satisfied that there was evidence on this question which it would have been improper to withhold from the jury. On 20 May, 1927, the plaintiff brought suit in Florida against the Mizner Development Company and alleged that it had received the check for $4,250, and had afterwards obtained the proceeds therefrom. It is contended by the plaintiff that she had not discovered the facts in regard to the transaction at the time the suit was instituted in the Florida court, but this was merely a circumstance to be considered by the jury in connection with other evidence. There was evidence tending to show that the proceeds of the cheek had been applied as they would have been applied if the check had been endorsed by the Mizner Company, and that the plaintiff had made one of her checks payable to the Mizner Development Company and Boca Raton Resales Company, and that it had been endorsed only by the Mizner Development Company. The seventh and eighth assignments must therefore be overruled. The thirteenth and eighteenth exceptions relate to the contentions which were not called to the attention of the court at the time and in the instruction which is the subject of the nineteenth exception we find no error. The other exceptions require no discussion. No error.