Bryant Timber Co. v. Tilghman Lumber Co.

AlleN, J. It was conceded upon tbe argument, and properly so, that tbe instructions to tbe jury are correct if there is no error in tbe admission of evidence, and upon a careful consideration of tbe record we find none. It is true, as contended by tbe defendant, that a deed only takes effect from delivery, but it was competent for tbe plaintiff to introduce in evidence its deed purporting to convey tbe timber in controversy to tbe defendant for tbe purpose of showing that it was ready and willing to perform its part of tbe contract. Tbe plaintiff claimed title in part under a proceeding for tbe sale of lands to which J esse F. Wilson was a party, and on tbe morning of tbe trial of this action Jesse E. Wilson filed in tbe clerk’s office a petition •which was not served, seeking to set aside tbe proceeding upon tbe ground that be bad been made a party thereto without authority, and this was relied on by tbe defendant as evidence of a defect in tbe title of tbe plaintiff. It then became competent for tbe plaintiff to introduce Messrs. Grady and Faison and to prove by them that Jesse E. Wilson authorized bis joinder as a party to tbe proceeding; that be was present when tbe petition was prepared and knew its contents. Tbe exceptions of tbe defendant to tbe refusal of tbe court to permit a witness to answer certain questions as to damage to tbe timber by fire and otherwise since tbe execution of tbe contract are without merit. *457 In -the first place, there is nothing in the record to indicate what would have been the answers to the questions. (Lumber Co. v. Childerhose, 167 N. C., 34), and again, it does not appear that if there was a depreciation in value, it occurred prior to the time the plaintiff tendered its deed to the defendant. There was ample evidence to support the findings of the jury, and the motion for judgment of nonsuit was properly denied. No error.