Armfield v. . Colvert

9 S.E. 461, 103 N.C. 147

• Court: Supreme Court of North Carolina
• Decided: February 5, 1889
• Status: Published

Opinion

Avery, J.

(after stating the case). We do not -deem, it necessary to set forth the whole of the referee’s report. We think the objection, that the testimony of the witness Col-vert was not competent, under § 590 of The Code, should have been sustained by the referee, and the eleventh exception of the plaintiffs ought not to have been subsequently overruled by the Judge. At the end of the statement of the testimony of J. G. Colvert we find the following:

“ Plaintiffs and defendant Nicholson, in apt time, objected to-all of the foregoing evidence touching any matter with A. F. Gaither.”

It is true, that this Court has held that objections to testimony, incompetent by reason of the provisions of section 590, will not be entertained, unless they are taken in due time. If so taken they will be sustained. Meroney v. Avery, 64 N. C., 312.

.The referee having,found that the objection was taken in apt time, we must consider the plaintiffs’ exception as having been entered, repeatedly, at the different times when Col-vert testified:

“ 1. All of book ‘A,’ from pages 102 to 107, was a settlement of the old partnership, and agreed io by all of the partners. The agreement between the partners of the old firm was to take an aggregate of the debts and credits, and the difference between them was to be the ratio of their part, in the new firm, of the $13,547.40.

“ 2. The list made from pages 102, to 106 was made by Gaither and myself, we having been appointed at the first meeting in 1876 as a committee to value the machinery, and take a list of all notes and accounts of the old firm. Gaither and myself took the list.

“3. AVe (Gaither and witness) went to the factory and examined the machinery, and valued it, as the book shows. Notes were taken by Gaither, calling out the names of makers, and witness took them down in book ‘A.’” ' -

We can find other statements in the testimony of John G. Colvert that are amenable to the objection of incompetency as tranéactions or communications with A. F. Gaither; and objection was also made to the testimony of W. I. Colvert in the same way, some portions of his testimony being erroneously admitted; but, as there was clearly error in permitting John G. Colvert to testify that his deceased partner entered into an agreement with the witness and the other partners, that the basis of merging the business of the old firm into the new should be that the stock of members of the old firm,, in that of Gaither & Colvert, should be the difference between their debits and credits with the former, and that, in pursuance of that plan of adjustment, Gaither aided him in determining the value of partnership property, and in making the settlement.recorded from page 102 to 106, book 41 A,” and assented to the statement of the result as to each partner, on page 107 (which appears in the statement of the case). The defendant clearly had the right to testify, that book “A” was kept among the papers of Gaither & Colvert, that Gaither had access to it, and that, in fact, many of the entries in the book were in his handwriting. Leggett v. Glover, 71 N. C., 211.

But the referee was acting both as judge and jury in the trial of this case, and the appellate Court cannot determine how much weight he attached, in passing upon the facts, to the evidence of Colvert, that his deceased partner directly .assented to a settlement, and aided him in recording it, when that settlement furnishes, in part, the data from which the referee reached a conclusion as to the amount due each partner at the time of the dissolution. The. evidence allowed and acted upon by the referee embraced both a transaction and a communication with the deceased, when the plaintiff had brought suit for a settlement against all of the partners of their testator, and thereby placed all of them in the attitude of adversaries. This case is, therefore, distinguishable from Peacock v. Stott, 90 N. C., 518. The plaintiff in that case had brought his action against three partners, one of whom was dead, and was allowed to testify as to a transaction with the three partners, because two of them were living and could contradict him if they would not admit the truth of his statements. This testimony was held admissible because it was not within the mischief intended to be prevented by §590 of The Code, viz.: ‘‘That unless both parties to the transaction can be heard on oath, a party to an action is not a competent witness.” McCanless v. Reynolds, 74 N. C., 301.

The fact that plaintiffs were compelled, it may be, to select ■one of the defendants, W. G. Nicholson, and examine him, as their first witness before the referee, does not affect the competencj'- of Colvert’s evidence, nor did the fact that Nicholson, one of the defendants, testified, without objection, that he heard Gaither say he had put about $2,000 into the new firm, remove the restrictions of the law, so as to make admissible evidence of Colvert, otherwise amenable to objection.

When Nicholson testified to that declaration of Gaither, the testimony of Gaither was not given in evidence, and if it had been, it did not relate to the same transaction or communication. It was not connected with the adjustment of the affairs of the old firm, the valuation of its property and the basis upon which the property was turned over to-Gaither and Colvert.

But it has been held by this Court that, where there was an issue as to the existence of a partnership between a witness and the intestate of the adversary party to the action, the witness would not be allowed, after objection, to testify that such a partnership existed, without first negativing the natural supposition, that his knowledge of the existence of such a partnership was derived from a transaction or communication with the intestate. Sikes v. Parker, 95 N. C., 232.

But it has been suggested, that the plaintiffs lost the advantage of their objection to the testimony, though it was taken in apt time, as the referee reports (and we must construe apt time to mean the very earliest moment that such objection could have been made), because the referee entered the objection at the close of the testimony of the witness, instead of attaching it to the utterances of the witness, to which it was in fact directed, as incompetent. It is evident that the referee intended, desired and expected that, in fairness and good faith to the plaintiffs’ counsel, the objection should be treated as specifically directed to any portions of evidence of the witness coming within the restrictions of said section. If it were not so the referee would have omitted the words “in apt time.” A¥e cannot consent, therefore, to deprive a party of a meritorious objection, made at the proper time, and place him on a level with one who studiously waits till a witness has delivered all of his testimony, some parts of which are competent, and other portions are not, and then excepts to the whole.

This Court has refused to consider such exception, on the express ground that the Judge, if asked in apt time, might have excluded testimony specifically pointed out as incompetent, and, if search could be made for a single'objectionable sentence in a mass of testimony, when silence at the moment could be construed into a waiver of objection. The “rule of practice which requires that the obnoxious evidence should be pointed out and brought to the notice of the Court, in order to a direct ruling on its reception,” is just and salutary, and is established bj^ authority. Hammond v. Schiff, 100 N. C., 161; Barnhardt v. Smith, 86 N. C., 473.

But in the case before us, the referee says that the obnoxious testimony was pointed out, and he had an opportunity of excluding it, and leaving of the “ mass of testimony” only such as was competent. Obviously, the reason of the rule, adopted in the cases last cited, does not exist, and the rigorous rule itself should be held inapplicable. To hold otherwise would be to stick in the bark, and thereby do manifest injustice.

There was error in overruling the eleventh exception of the plaintiff, and the judgment is reversed. The cause will be re-referred to the referee. We have deemed it unnecessary to discuss the other exceptions. It may not be improper to call the attention of the parties to the case of Holden v. Peace, 4 Ired. Eq., 223, as bearing, possibly, upon another question that was the subject of discussion and exception.

Error. Reversed.