Lee v. . Knapp

Ashe, J. The exceptions taken by the defendants to the ruling of His Honor in excluding the evidence offered by them were properly overruled by the court. The defendants proposed to prove that the articles alleged to have been purchased by them were not bought by them, but by one or the other of the two *173 corporations, in one of which the}'- held official positions. The evidence was of such a character that, if the facts proposed to be proved had been set up in an answer filed by them and sustained by proof, it would undoubtedly have defeated the plaintiff’s action. And it is settled that on an inquiry of damages upon a judgment by default, nothing that would have amounted to a plea in bar to the cause of action can be given in evidence to reduce the damages (Garrard v. Dollar, 4 Jones, 175), and the reason given for the rule is, that to allow such evidence after a judgment by default on an inquiry of damages, would take the plaintiff by surprise and prevent him from meeting the defendant upon equal terms with respect to the evidence, whereas when such defense is set up in the answer, the plaintiff has notice of the defense and may prepare to meet it. The plaintiff alleged in his complaint that the goods mentioned therein were bought by the defendants,'and the judgment by default admits all the material allegations properly set forth in the complaint, and of course everything essential to establish the right of the plaintiff to recover. Any testimony therefore tending to prove that no right of action existed against the defendants, or denying the cause of action, is irrelevant and inadmissible on the inquiry of damages. Garrard v. Dollar, supra. In this ease the action was in nature of assumpsit for goods sold and delivered, and the specific articles were not set forth in the complaint. The judgment by default admitted the plaintiff had cause of action against the defendants and would have been entitled to nominal damages without any proof; but in seeking substantial damages, he was required to make proof of the delivery of the articles and their value. This the plaintiff did, and there was no competent evidence offered by the defendants to reduce the damages. The evidence offered by them only went to the cause of action, which being admitted by the judgment by default, the plaintiff was entitled to recover the value of the *174 amount of goods proved to have been delivered. Swepson v. Summey, 64 N. C., 293; Parker v. House, 66 N. C., 374. There is no error. The judgment of the superior court is affirmed. No error. Affirmed.