State Ex Rel. Swann v. Martin

Brogden, J. The first cause of action is based upon an alleged conspiracy between the defaulting clerk of Pamlico County and Paul D. Cahoon, administrator of the estate of Nathan Oahoon, deceased. An "issue involving the question of conspiracy was submitted to the jury under instructions by the court to answer it in'the negative. On this aspect of the case, therefore, the only question to be determined is whether or not there was any evidence of conspiracy. It appeared that the administrator had collected about $2,000 belonging to the estate of the decedent, and that this sum had been loaned by the administrator to the clerk without security. It further appeared that the administrator had not made all the reports as required by statute. A conspiracy has been defined to be “an agreement between two or more individuals to do an unlawful act or to do a lawful act in an unlawful way.” S. v. Dalton, 168 N. C., 204. A conspiracy has been further defined as a “combination among two or more persons to accomplish, by concerted action, an unlawful purpose, or a purpose, not in itself unlawful, by unlawful means. But whether it is a wrongful or illegal conspiracy depends not upon the name given by the pleader, but upon the quality of the acts charged to have been committed. If these acts are not wrongful or illegal, no agreement to commit them can properly be called an illegal and wrongful conspiracy.” Balle ntine v. Cummings, 70 Atl., 548. A conspiracy may be proved by circumstantial evidence because in questions involving conduct of men the certainty of mathematical precision cannot be obtained nor is such required. S. v. Knotts, 168 N. C., 188. *407 In Shields v. Bank, 138 N. C., 185, the question of conspiracy in civil actions was under consideration by Justice Hoke. In disposing of the question at issue in that case this language was used: “It must be proved as well as alleged that the plaintiff entered into a conspiracy to cheat and was a participant in a fraudulent purpose, either in the scheme or its execution, which worked injury to the defendant as a proximate consequence.” However, the proof must be sufficient to create more than a suspicion. Testimony that raises no more than a suspicion is not sufficient to be submitted to a jury as evidence of guilt. Perry v. Ins. Co., 137 N. C., 404. The principle is thus stated in Brown v. Kinsey, 81 N. C., 245: “The rule is well settled that if there be no evidence, or if the evidence be so slight as not reasonably to warrant the inference of the fact in issue or furnish more than materials for a mere conjecture, the court will not leave the issue to be passed on by the jury.” Sutton v. Madre, 47 N. C., 320; Liquor Co. v. Johnson, 161 N. C., 77; Seagrove v. Winston, 167 N. C., 207; S. v. Bridgers, 172 N. C., 882; S. v. Prince, 182 N. C., 790. A fair interpretation of plaintiff’s first cause of action; as alleged, compels the conclusion, that conspiracy is the sole foundation of the remedy sought. Applying the law to the facts disclosed in the record, we hold that there was no evidence of a “wrongful and unlawful conspiracy and collusion between the defendant and the said administrator to cheat and defraud the estate of Nathan Cahoon,” sufficient in probative value to create more than a conjecture or suspicion. Upon the second .cause of action upon the $1,000 bond of Paul D. Cahoon, administrator of Nathan Cahoon, it appears that the entire penalty of said bond has been paid by New Amsterdam Casualty Company to B. E. Griffin, guardian. This second cause of action is disposed of in the opinion of Justice Gonnor rendered in this cause and reported in 189 N. C., 254. Exception to the charge of the trial judge upon the issue relating to the statute of limitations in the first cause of action becomes immaterial by reason of the fact that this cause of action was based upon conspiracy, and the jury found no conspiracy existed. Exception to the charge of the trial judge upon the issue relating to the statute of limitations upon the second cause of action is likewise immaterial because the decision of the Court in 189 N. C., p. 254, precluded the assertion of the second cause of action at all. The judgment must therefore be Affirmed.