Sternberg v. Crohon & Roden Co.

172 N.C. 731

• Court: Supreme Court of North Carolina
• Decided: December 19, 1916
• Status: Published

Opinion

AlleN, I.

The objection to the'introduction of the draft and the letter accompanying it are without merit. There was no controversy as to the identity or form of tire draft, which the plaintiff admitted he paid, and the letter contained nothing prejudicial to the parties.

The parts of the depositions offered by the plaintiff as declarations or admissions were properly excluded.

The persons whose depositions had been taken were not parties, nor had they been examined as witnesses on the trial. They were officers and agents of the bank, and the declarations were not made in the course of business, but after the transaction in controversy, and the evidence falls within the long line of cases illustrated by Rumbough v. Improvement Co., 112 N. C., 753, in which the declaration of the president and general manager of the company as to a part transaction was excluded upon the ground that he was a mere agent and as such did not have authority to bind the company by his declarations.

The evidence was also incompetent if offered as a part of the deposition, as it is not permissible to introduce selected portions of a deposition without offering the whole. Boney v. Boney, 161 N. C., 621, and cases cited; Barton v. Morphes, 13 N. C., 520.

The prayers for instructions generally contain correct statements of the law, but by comparison with the charge given, it will be seen that bis Honor substantially gave tbe plaintiff tbe benefit of tbem and tbat be followed tbe rule laid down in Moon v. Simpson, 170 N. C., 336, and in Worth Co. v. Feed Co., ante, 335.

He told tbe jury to answer tbe issue in favor of tbe plaintiff if there was an express or implied agreement tbat tbe bank was taking tbe draft for collection or if tbis was tbe understanding resulting from' tbe methods of doing business, which was as favorable as tbe plaintiff was entitled to.

No error.