Spencer v. Fortescue

MacRae, J.: The matter in controversy was whether R. H. Watson paid off the note for the defendant Nancy E. Fortescue, or whether he paid it only in part with said defendant’s funds and purchased it and took it by transfer to himself subject to the credits; and if the latter were the ease, what sum is still due upon the note. The mortgage was admitted, but defendants contended that the note secured thereby had been fully paid and the mortgage satisfied. 1. The issues were intelligently framed by his Honor as raised by the pleadings, with the addition of others suggested by the evidence. He might simply have submitted [275] issues whether the plaintiff was the owner of the note, and if so, what amount, if any, was still clue upon it. The issue tendered by plaintiff’s counsel wras open to the objection that it sought merely .to ascertain the intent of R. H. Watson, and not what was the contract or agreement between the parties when he made the payments. It would not ha\Te been proper for his Honor to have substituted the issue tendered by plaintiff’s counsel for the second issue-which was submitted. 2. The plaintiff had testified that -he indorsed the credit of $204.60 upon the note on March 4, 1885, by direction of C. M. Watson, a former owner of the note, and the proposition was to prove what C. M. Watson said when the credit was indorsed. The contention of plaintiff was that on the 19th of December, 1884, there was due upon the note $343, and that at that date R. TL Watson paid thereon with the funds of defendant $149, and with his own funds $194, and had taken a transfer of the note and mortgage to himself to secure the balance, $194, which he had paid for it, and that defendant Nancy had paid thereafter a sum sufficient to reduce the amount due on March 4, 1885 (after the indorsement of credit of that date of $204.60), to the sum of $144.12, which sum, with interest, he claims to be still due and secured by mortgage, all of which will appear by reference to the amended complaint. It is not claimed that any.payment had been made to C. M. Watson while he wras owner of the note; what C. M. Watson said to plaintiff at the endorsement of the credit' could only have been as to the declarations of others; it must have been hearsay and inadmissible as part of the res gestae. This is not a case like Harper v. Dail, 92 N. C., 394, on which plaintiff’s counsel relies. ' In that case the receipt was in these words: “Received of B. H. $150 in part pay276 meat of the claim I hold against him as guardian of the heirs of R. Heath, deceased. (Signed) R. 0. B., Guardian.” It was in evidence that there were two claims against B. Ií. held by R. C. B.; guardian of the Pleatli heirs, and it was important that it should be ascertained upon which of these claims the $150 had been paid; and this Court held that it was eompent for B. H. to testify in answer to the question, “ What claim he settled when the receipt was given by B., if anything was said about what claim he was paying?” The general proposition was announced by the Court that a receipt, when it is an acknowledgment of the payment of money or the delivery of goods, is merely prima facie evidence of the fact which it recites and may be contradicted by oral testimony. As far as we can see, nothing which C. M. Watson could- have testified would have been competent to show whether the $149 was part of the $204.60. It also appears that C. M. Watson was present at the trial and under subpoena; if his testimony was competent, he might have been examined as a witness if plaintiff desired. 3. The third exception is to the admission as evidence for the defendant of the second article of the amended answer. The plaintiff had offered the first article, which admitted that there was due on December 19, 1884, on the note while in Makely’s hands the sum of $300; the second article was a qualification of the first, which alone was an admission of the debt, and for this reason was admissible. The rule is so well stated in 1 Greenleaf Ev. (14 Ed.), section 201, that we avail ourselves of it: “ We are next to consider the effect of admissions, when proved. And here it is first to be observed that the whole admission is to be taken together; for though some part of it may contain matter favorable to the party, and the object is only to ascertain that which he has conceded against himself, for it is to this [277] only that the reason for admitting- his own declarations applies, namely,' the great probability that they are true; yet, unless the whole is received and considered, the true meaning and import of the part which is good evidence against him cannot be ascertained. But though the whole of what he said at the same time and relating to the same subject must be given in evidence, yet it does not follow that all the parts of the statement are to be regarded as equally worthy of credit; but it is for the jury to consider, under all the circumstances, how much of the whole statement they deem worthy of belief, -including as well the facts asserted by the party in his own favor as those making against him.” See also note (a) for further illustration. The admission of this evidence, therefore, proceeds from a different principle from that laid down in Austin v. King, 91 N. C., 286, cited by plaintiff’s counsel — that a declaration of a party made in his own interest is incompetent. 4. The exceptions to the refusal of his Honor to give the instructions asked by plaintiff are founded upon the assumption that there was no evidence on the part of defendant to rebut the presumption arising from the possession of .the note by plaintiff and to siqqport her plea of payment and allegation that it-had never been assigned by Makely. We think there was evidence to go to the jury upon each of. the issues; its weight was a question for the jury, and, after verdict, for the Judge, upon proper motion, and cannot be considered here. We were not favored with an argument or brief upon the fourth and fifth exceptions, for error in the admissions of Makely and of Hayes; they were neither waived nor pressed, and we can discover no good ground for a refusal to admit the same. There is No Error.