Batten v. . Aycock

BaeNhill, J". Plaintiff on bis examination-in-chief was competent to testify to tbe bandwriting of tbe deceased from bis general knowledge, but not to testify that be saw tbe deceased person actually sign tbe par *227 ticular receipt. Lister v. Lister, 222 N. C., 555, and cases cited; Herring v. Ipock, 187 N. C., 459, 121 S. E., 758. When, however, the defendant, representative of the deceased, was examined in behalf of the defendants concerning the same transaction, she thus opened the door and made competent the testimony of her adversary concerning the same transaction about which she testified. G. S., 8-51 (0. S., 1795); Pope v. Pope, 176 N. C., 283, 96 S. E., 1034; Sumner v. Candler, 92 N. C., 634; Herring v. Ipock, supra; Lewis v. Mitchell, 200 N. C., 652, 158 S. E., 183; Hall v. Holloman, 136 N. C., 34, 48 S. E., 515. The evidence offered by the defendants, although equivocal, was for the purpose of attacking the genuineness of the receipt and to prove that the deceased did not, in fact, sign the same. This, in our opinion, opened the door in respect to this particular part of the controversy. So soon as they undertook to attack the instrument through the evidence of the executors, its execution became an open question and made competent plaintiff’s testimony that Dr. Tick signed the paper writing, even though the statement was based on the fact he saw him sign at the time he claims he made the payment. But the “door is opened” only in respect to the transaction or set of facts about which the representative of the deceased person testified. “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 admit another independent transaction.” Walston v. Coppersmith, 197 N. C., 407, 149 S. E., 381. Plaintiff also stresses another assignment of error which appears in the record. Bfis mother was surety on the prosecution bond. She offered to testify concerning the transaction between plaintiff and the deceased at the time plaintiff alleges he paid the debt in full. Her testimony was excluded under G. S., 8-51; C. S., 1795. Plaintiff excepted and assigns the same as error. As the question thus presented may become moot by the substitution of another bondsman before the next hearing, a majority of the Court are of the opinion that we need not take notice of the exception at this time. In deference to this majority view, we pass the exception without discussion. The exclusion of plaintiff’s proffered testimony to the effect that he saw the deceased sign the receipt was 'error prejudicial to the plaintiff, entitling him to a New trial.