Huffman v. Gaither Lumber Co.

Pee Cukxam. We have carefully examined the record, and find no sufficient reason for disturbing the verdict and judgment of the Superior Court. *261 Tbe words in tbe indorsement of tbe credit on tbe note, “tbe above,” are ambiguous, and it was competent for tbe witness to testify, in explanation thereof, tbat tbe whole account against tbe Gaither Lumber Company, amounting to $1,414.12, was attached to tbe note. Tbe objection to tbe declarations of Gaither, manager of tbe Gaither Lumber Company, apparently made in 1910, would be tenable, but it appears tbat tbe witness was only asked as to statements made by him with reference to tbe items in tbe account of 26 March, 3 April, and 5 April, 1909, and tbat these items were not in dispute, because they were embraced in two notes of 18 May, 1909, in the amounts of $367.09 and $370.30. If tbe answer of tbe witness went beyond tbe question it was tbe duty of tbe defendant to move to strike it out. As tbe execution of tbe notes was not denied, and tbe real dispute was as to tbe application of a payment, tbe motion to nonsuit was properly denied. No error.