Walston v. . Coppersmith

Brogden, J. Did the delivery of the check with the notation thereon “balance on potatoes,” after a dispute had arisen between the parties, and the subsequent cashing of said check by the plaintiff, constitute an accord and satisfaction? The principle of law involved in the transaction has been discussed in many eases. The leading authorities upon the subject are assembled in Hardware Co. v. Farmers Federation, 195 N. C., 702, 143 S. E., 471. It is not controverted that a dispute had arisen between the parties before the delivery of check. Obviously, if the cheek had been delivered under the circumstances with the notation thereon, nothing else appearing, the delivery, acceptance and cashing of said check would have undoubtedly constituted a settlement. The legal principle was expressed in Supply Co. v. Watt, 181 N. C. 432, 107 S. E., 451, as follows: “There was no ambiguity or grounds for misunderstanding defendant’s tender and offer of settlement. Obviously he wanted to adjust all of their differences at one and the same time. The plaintiff had its choice, and we think it is precluded by its accept- *409 anee and election knowingly made. The check should have been returned if the conditions of its acceptance were not satisfactory, or at least, the defendant should have been given an opportunity to say whether he would waive.the conditions and allow the check to be credited on account.” However, the plaintiff contends that something else does appear and that the acceptance of the check was explained by the conversation occurring between him and the defendant, E. Coppersmith, at the time the check was given and accepted. The defendant, E. Coppersmith, was dead at the time of the trial. The plaintiff testified that the defendant, ~W. B. Coppersmith, was not present at the time “we were discussing it,” nor at the time when the check was given. The plaintiff was asked what statement was made by E. Coppersmith at the time the check was delivered. The defendant objected upon the ground that any statement made by E. Coppersmith was incompetent under C. S., 1795. The witness was permitted to give the following answer: “I told him I could not settle for that. You had not figured it right. I can’t settle that way. He said he would get three disinterested potato men, and whatever they say I will give you every cent of it. I said that is as fair as we can do; that is the reason I received the check. The three disinterested men were selected at this time, and I walked over to the place where they were. The three disinterested men were not there with Elisha Cop-persmith at the time I received the check.” The defendant contends that this evidence constituted a personal transaction within the purview of C. S., 1795, and was therefore incompetent. The position of the defendants is supported by the authorities, and the evidence should have been excluded. Hence the result is that the check, with the notation thereon, without other explanation of the intention of the parties, was received and used by the plaintiff. • Under these circumstances there was a settlement between the parties, and the motion for nonsuit should have been granted, The plaintiff insists that the defendant, W. B. Coppersmith, had “opened the door” because he had testified about the purchase of the potatoes and with reference to other facts involved in the transaction. A careful examination of the record, however, does not disclose that the living defendant testified with reference to the giving of the check or the discussion between E. Coppersmith, deceased, and the plaintiff regarding the controverted items. The law is to the effect that if the “door is opened” with respect to one transaction or set of facts, it is not necessarily opened to all transactions or fact situations growing out of the controversy. In other words, if one party opens the door as to one transaction, the other party cannot endeavor to swing it wide in order to *410 admit another independent transaction. This principle was definitely declared in Pope v. Pope, 176 N. C., 283, 96 S. E., 1034, in which the Court declared: “There is nothing inequitable in requiring that the opposing testimony to that given in evidence by the other side should be limited to the same transaction or communication.” New trial.