J. & E. Stevens Co. v. Mooneyham

Supreme Court of North Carolina

J. & E. Stevens Co. v. Mooneyham

189 S.E. 780, 211 N.C. 291, 1937 N.C. LEXIS 70

CourtSupreme Court of North Carolina

DecidedFebruary 24, 1937

StatusPublished

Cited by1 cases

This text of 189 S.E. 780 (J. & E. Stevens Co. v. Mooneyham) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

J. & E. Stevens Co. v. Mooneyham, 189 S.E. 780, 211 N.C. 291, 1937 N.C. LEXIS 70 (N.C. 1937).

Pincite

Opinion

Per Curiam.

The uncontradicted evidence at the trial of this action showed that the goods, wares, and merchandise described in the complaint were delivered to the defendant at his place of business in the city of Asheville, N. C., on or about 15 September, 1935, and that the purchase price of said goods, wares, and merchandise was $278.98. This amount was due on 10 January, 1936. No payment has been made by the defendant on this amount. The court instructed the jury that if they should find the facts to be as the evidence tended to show, they would answer the first issue “Yes; $278.98, with interest from 10 January, 1936.” There was no error in this instruction.

*293 Tbe evidence for the defendant tended to show that when the goods, wares, and merchandise which he had purchased from the plaintiff were delivered to him, they were in packages, and that these packages were not opened by the defendant until some time in December, 1935. Plaintiff’s objetions to questions addressed to witnesses for the defendant with respect to the condition of the goods, wares, and merchandise, when the packages were opened, were sustained by the court. It does not appear in the record what the answers of the witnesses would have been had the objections of the plaintiff not been sustained. In Newbern v. Hinton, 190 N. C., 108, 129 S. E., 181, it is said: “We are precluded from passing upon the merits of defendant’s objections to the evidence, since the record does not disclose what the witnesses would have said if the question had been allowed. The burden is on the appellant to show error, and therefore the record must show the competency and materiality of the proposed evidence. This Court will not do the vain thing to send a case back for a new trial when it does not appear what the excluded evidence is, or even that the witnesses would respond to the question in any way material to the issues. This is the established practice in this Court, in both civil and criminal cases.”

In the absence of any evidence tending to support the counterclaim of the defendant, there was no error in the instruction of the court with respect to the second issue.

The judgment is affirmed.

No error.

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Per Curiam.

The uncontradicted evidence at the trial of this action showed that the goods, wares, and merchandise described in the complaint were delivered to the defendant at his place of business in the city of Asheville, N. C., on or about 15 September, 1935, and that the purchase price of said goods, wares, and merchandise was $278.98. This amount was due on 10 January, 1936. No payment has been made by the defendant on this amount. The court instructed the jury that if they should find the facts to be as the evidence tended to show, they would answer the first issue “Yes; $278.98, with interest from 10 January, 1936.” There was no error in this instruction.

*293 Tbe evidence for the defendant tended to show that when the goods, wares, and merchandise which he had purchased from the plaintiff were delivered to him, they were in packages, and that these packages were not opened by the defendant until some time in December, 1935. Plaintiff’s objetions to questions addressed to witnesses for the defendant with respect to the condition of the goods, wares, and merchandise, when the packages were opened, were sustained by the court. It does not appear in the record what the answers of the witnesses would have been had the objections of the plaintiff not been sustained. In Newbern v. Hinton, 190 N. C., 108, 129 S. E., 181, it is said: “We are precluded from passing upon the merits of defendant’s objections to the evidence, since the record does not disclose what the witnesses would have said if the question had been allowed. The burden is on the appellant to show error, and therefore the record must show the competency and materiality of the proposed evidence. This Court will not do the vain thing to send a case back for a new trial when it does not appear what the excluded evidence is, or even that the witnesses would respond to the question in any way material to the issues. This is the established practice in this Court, in both civil and criminal cases.”

In the absence of any evidence tending to support the counterclaim of the defendant, there was no error in the instruction of the court with respect to the second issue.

The judgment is affirmed.

No error.

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Bluebook (online)

189 S.E. 780, 211 N.C. 291, 1937 N.C. LEXIS 70, Counsel Stack Legal Research, https://law.counselstack.com/opinion/j-e-stevens-co-v-mooneyham-nc-1937.

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