March v. . Verble

Smith, C. J. This action is prosecuted to recover for goods sold and money loaned to the defendant’s intestate, and for money received by him to the use of W. B. March. The complaint alleges that prior to the suit, the creditor W. B. March assigned his claim to the plaintiffs, and this is denied in the answer. Issues were made up from the pleadings and submitted to 'the jury, and among them one as to the alleged assignment. On the trial the plaintiffs failed to prove the affirmative, and thereupon obtained leave of the Court to amend by making March a co-plaintiff, he assenting thereto, and the issue was withdrawn. The jury found-to be due from the defendant’s intestate the sum of one thousand, eight hundred and thirty-two dollars and fifty cents. *22 The complaint being otherwise unamended, the effect of the introduction of the new plaintiff into the'pleadings, is to make the allegation of the assignment as well that of the assignor, as of the other plaintiffs, and to conclude both as to any future demand on the intestate’s estate, and indeed to make the withdrawn issue wholly immaterial to the defendant, unless he should have some set off or equity, which is not suggested, to be affected thereby. Indeed the assignment not being proved as to him, he can avail himself of .any defences personal to the assignor, as if the assignor was sole owner of the debt, and the only plaintiff. The form of the judgment must be modified so that the assignor recovers the money due to the use of his co-plaintiff. We deem it proper to suggest that an amendment, so radical in its effects as to change impending defeat into success, and substantially to substitute a new action, would entitle the defendant to a mistrial, and this would without doubt have been ordered if it had been asked, and it would seem to be a proper case to impose costs previously incurred, or such part of them as would not have been incurred if the action had always been in the form resulting from the amendment. But these rested in the sound discretion •of the Judge who tided the cause, and as has been often «aid, are not subject to our review. The defendant in the cross-examination of one of the plaintiff’s witnesses, proved a conversation between the plaintiff* and the defendant’s intestate, which occurred in the ■Spring of 1868, and was to this effect: The intestate said to March, “ You have got to get that money for me, you must let me have it by Court.” March answered, “ These .are tight times for money, and I don’t think I can let you ■have it.” The intestate added, “You had better let me make you a deed for the way-side property,” to which March said, “ Any time will do,” and the intestate replied, ■“That is what you always say.” No deed was ever made, *23 .aud the property was partially paid for in 1867 by March to the intestate. Thé defendant asked the Court to charge the jury, that this conversation furnished some evidence that March was indebted to the intestate at that time, and had paid-the ■claim in suit. The Court declined to give the instruction, and told the jury this was not evidence of payment. We concur in the propriety of the refusal to give the in struction. The evidence was too indistinct and shadowy to warrant any such deduction. It at most and when favorably interpreted raises a conjecture or suspicion of the fact, .and from such the jury would not be warranted in inferring that payment had been made. The cases cited in the brief ■of plaintiff’s counsel fully sustain this position. Cobb v. Fogleman, 1 Ire. 440; Sutton, v. Madre, 2 Jones, 320; Matthis v. Matthis, 3 Jones, 132; State v. Revels, Busb. 200; Wittkowsky v. Wasson, 71 N. C., 451. The counsel of defendant further excepts that the plaintiff March was allowed' to testify that he owned but one bull since the surrender, and to give his opinion that it was worth fifty dollars. The sale of a bull to the intestate since the war was one of the charges contained in the account .and in controversy before the jury, and another witness had •estimated the value of the bull to be from thirty to forty •dollars. We see no objection to this evidence and no error in admitting it. The plaintiff did not testify to any conversation ■or transaction with the intestate within the meaning of C. C. P., § 343, but to a substantive, and independent fact, and the evidence was not rendered incompetent because in association with other matters proved aliunde, it tended to •charge the intestate’s estate. Its competency is fully supported by the cases cited in the brief of plaintiffs counsel, .and we simply refer to them. Peoples v. Maxwell, 64 N. C., *24 313; State v. Osborn, 67 N. C., 259; Gray v. Cooper, 65 N. C., 183. In the last case the action was to recover for the services' of a slave belonging to the plaintiff’s testator, and in the-•employment of the defendant’s intestate. The plaintiff was-allowed to prove by his own oath that the intestate had the slave in his possession and in his service for; two years, and the value thereof. This Court held the witness competent to testify to those facts and sustained the ruling of the-Judge. This case decides the question now before us.. There is no error, and the judgment as modified must be* affirmed. No error.. Per Curiam. ■ Judgment modified and affirmed.