Boney v. Boney

Allen, J. The evidence of G. J. Boney, offered by the plaintiffs and excluded by the court, was incompetent under section 1631 of the Eevisal. He was one through whom plaintiffs and defendants claimed, and was offering to testify, in behalf of the plaintiffs and against the defendants, as to conversations and transactions with Mrs. E. M. Boney, deceased, to whom the witness had executed the deed, and from whom the defendant derived his title. Bunn v. Todd, 107 N. C., 267. The witness D. E. Boney was examined by the court in the absence of the jury. He said, among other things, while speaking of the sale by G. J. Boney, assignee: “Before the sale that morning I and the two brothers consulted about it, and it was agreed that our wives would bid off our place, and the widow was to bid off her place. This money was to go to pay off the creditors, provided it would do it. It seemed to be the understanding that she was buying for herself and children by the second marriage, but I don’t know what was said about that. I don’t know whether she was to buy it off as widow or buy it [621] off and bold it for her husband’s heirs. I don’t know that that was explained. I don’t remember any explanation about that.” The court then excluded the evidence upon the statement by counsel for plaintiffs that they could not prove knowledge of the agreement or understanding upon the part of Mrs. E. M. Boney, except by the evidence of G. J. Boney, which we have held was properly excluded. This ruling was correct, but his Honor might have gone further, as the evidence of Mr. Boney shows that he had no recollection of any agreement or declaration of a trust. The letters written by W. J. Boney to Walter Boney fall clearly within the rule res inter alios acta, as they were not written by the defendant Paisley Boney, or to him, or by his authority. We have not been able to find a direct adjudication in this State sustaining his Honor in excluding parts of the deposition of Mrs. Turner because the whole was not offered, but the authorities elsewhere are in accordance with his ruling. * Killbourne v. Jennings, 40 Iowa, 475; Schwartz v. Brunswick, 73 Mo., 257; Hamilton v. Milliken, 62 Neb., 117; S. v. Rayburn, 31 Mo. App., 386; Lanohan v. Lawton, 50 N. J. E., 276; Grant v. Pembry, 15 Kan., 242. It is, however, immaterial, whether right or wrong, as the plaintiffs offered the whole of the cross-examination of the witness, and the examination in chief, which they were required to introduce, could not affect the case one way or the other, she testifying on the examination in chief to nothing except that her name was Harriet C. Turner; that she was 76 years of age, and was the sister of Mrs. E. M. Boney. The plaintiffs do not contend that the questions and answers in the deposition, excluded upon the objection of the defendants, were competent as they are presented, but that his Honor did not have the power to entertain the objections when the deposition was offered; but the answer to this contention is that his Honor acted upon an agreement of counsel that objections might be heard and passed upon by the judge at the trial. Holding, as we do, that the evidence of G. J. Boney, D. E. Boney, and Mrs. Turner was properly excluded, there was re [622] maining no evidence to support tlie second, third, and fourth causes of action, unless the conduct of the defendant Paisley Boney at the time the letters were shown him by Mr. West-brook is evidence of the facts alleged. Our Court recognizes the doctrine that silence in the presence of an accusation is some evidence of acquiescence in the charge, but we are admonished that it is so liable to misinterpretation, and abuse that such evidence should be received with great caution, and should not be received at all, except under well recognized conditions. Tobacco Co. v. McElwee, 96 N. C., 74; S. v. Jackson, 150 N. C., 832. As was said in Moore v. Smith, 14 S. and R., 393, which is cited with approval in the Tobacco Co. case, supra: “Two men at this rate might talk a third out of his whole estate with a witness! Nothing can be more dangerous than this kind of evidence. It should always be received with caution, and never ought to be unless the evidence is of direct declarations of that kind which naturally calls for contradictions — some assertion made to the man, with respect to his right, which by his silence he acquiesces in.” In Chamberlayne Mod. Ev., vol. 2, secs. 1401 and 1402, the author notes a distinction between oral and written accusation. He says (sec. 1401) : “Should a party to a litigation deny the truth of a statement made to him, no reason exists for introducing the fact in evidence as an admission that the statement was true. On the contrary, should the person addressed fail to deny the truth of the statement made to him, or in his presence, it has been thought that under cover of the very illusory maxim that ‘silence gives consent,’ some rule of evidence of necessity renders admissible as against the party all which was said in his presence and not categorically or in substance denied by him. The dangers of establishing such a rule of procedure or canon of administration are obvious. No rights of a party whom any one saw fit to address concerning them would be safe under such a state of the law.” Sec. 1402: “Experience shows that, in the case of the average man, a marked distinction exists between the readiness with which he will reply to an oral question and his readiness to answer, in writing, a [623] written claim or demand. Those who are addressed directly, face to face, feel a spontaneous impulse frequently, perhaps the result of habit, to deny a false declaration regarding a matter which intimately concerns them. In proportion as yielding to such an impulse would be natural, failure to do so is significant. No such intuitive suggestion is, as a rule, presented where statements are made in writing. Even where the initial impulse is to reply, the feeling frequently fails to persist until it becomes effective in a resultant denial. Delay removes spontaneity. A stage of deliberation intervenes. No immediate necessity for taking a definite position may be felt. In view of these and similar considerations, it can scarcely be said. that any uniform natural impulse to traverse erroneous written statements exists under ordinary, circumstances.” The accusation must be direct and of a character which calls for contradiction. “Acquiescence, to have the effect of an admission, must exhibit some act of the mind, and amount to voluntary demeanor or conduct of the party,” and the circumstances must be such “as would properly and naturally call for some action or reply from men similarly situated.” S. v. Jackson, supra,. One of the recognized conditions which justifies the exclusion of such evidence is that the accusation is made by a hostile party, and for the purpose of procuring evidence, when silence may be the only wise and prudent course. Judge Bedfield says, in Mattocks v. Lyman, 16 Vt., 119: “But when the claim is made for the mere purpose of drawing out evidence, as in the present case it is obvious must have been the fact, or when it is in the -way of altercation, or, in short, unless the party asserting the claim does it with a view to ascertain the claim of the person upon whom he makes the demand, and in order to know how to regulate his own conduct in the matter, and this is known to the opposite party, and he remains silent, and thereby leads the adversary astray, mere silence is, and ought to be, no ground of inference against any one. The liabilities to misapprehension, or misrecollection, or misrepresentation are such that this silence might be the only security. To say, under such a dilemma, that silence shall' [624] imply assent to all which an antagonist may see fit to assert would involve an absurdity little less gross than some of the most extravagant caricatures of this caricature-loving age. With some men, perhaps, silence would be some ground of inferring assent, and with others none at all. The testimony then would depend upon the character and habits of the party— which would lead to the direct trial of the parties, instead of the case.” Applying these jtrinciples, we are of opinion that the conduct of the defendant, standing alone as it does, was not sufficient to have the second, third, and fourth causes of action submitted to a jury. The witness who handed the letters to the defendant was a son-in-law of Mrs. Boney, and was endeavoring to procure evidence to be used on the trial of this action, which was instituted within six months thereafter. He made no charge himself which might have been expected to cause instant reply, but on the contrary handed the defendant letters and asked him to read them and say what he would do. The defendant had time for reflection, and knowing he was in the presence of a witness antagonistic to him, and that what he said might be misunderstood or misquoted, it was the part of prudence and wisdom to say nothing, for fear he might regret it. No direct charge was made in either letter, and if it may be inferred from the first that the writer intended to convey the idea that the residue would be divided because of an existing trust, the second goes far to destroy any such contention, as it is therein said that the defendant had “bought out the whole tract.” At most, the conduct of the defendant, under these circumstances, could have created no more than mere conjecture as to the existence of the causes of action, as to which judgments of nonsuit were entered. We find no error in the trial of the issue submitted to the jury, and are of opinion the instructions to the jury were as favorable as the plaintiffs had the right to expect. The rulings on the evidence of W. F. Murphy and Luther Oarr are sustained by Smith v. Smith, 111 N. C., 326. No error.