Opinion
June Term, 1876.
Evidence — Fragmentary Conversation.
The testimony of a witness (called by the plaintiff), who stated that he heard the bargain, or terms of the contract, which was the subject of controversy, but did not hear the whole of the conversation between the plaintiff and the defendants, is competent to prove what such contract was, and is not open to the objection of its being "fragmentary."
ACTION on contract, tried at January Term, 1876, of CUMBERLAND, before Buxton, J.
The plaintiff, a coppersmith, sought to recover a balance due for a turpentine still and fixtures furnished the defendants, doing business in Bladen County.
On the trial in the court below there was much evidence heard irrelevant to the point decided in this Court, viz., as to the competency and effect of certain evidence; as also several exceptions taken, which were, in this Court, abandoned, etc.
The defendants alleged that they had suffered loss, by reason (116) of the plaintiff failing to deliver the still on a day certain, thus disappointing them, as they had collected and engaged turpentine with the view of starting operations at once, which turpentine had wasted by leakage in consequence of such delay.
One of the defendants, Smith, who made the contract with the plaintiff, testified that in February, 1872, or the first of March, when he made this contract with the plaintiff at the shop of the latter in Fayetteville, the plaintiff expressly agreed to deliver the still and fixtures by the last of March or the first of April following; and that, relying upon the plaintiff's fulfilling this agreement, he had previously to 1 April, 1872, bought and made engagements for a large quantity of turpentine, and that considerable leakage had occurred from evaporation, etc., of the virgin dip, during the delay from 1 April, the stipulated time, and 6 June, the actual time of delivery.
Another witness estimated the loss by leakage, etc., at $180.
In reply to this evidence for the defendants, the plaintiff testified that there was no certain day named for the delivery of the still; that he was very much crowded with work, and was unable to do so and did not do so; that he agreed to deliver the still as soon as he could, and that he had done so.
Jordan Branch, a witness for the plaintiff, testified that in 1872 he was in the employ of the plaintiff as a coppersmith; that he was engaged in hammering on a still the day that the defendant Smith came and made the bargain with the plaintiff for the exchange of stills. That the plaintiff and defendant were engaged in conversation, when he was called up to them by the plaintiff and asked by him when he could get the still ready. Here the defendants' counsel interrupted the witness and asked him if he could repeat the substance of all the conversation which occurred on that occasion between the plaintiff and defendant. Witness answered that he could state the substance (117) of what occurred while he was present, and thought that he heard the whole of the bargain, but that he found them talking and left them talking when he went back to his work; and so he could not say that he heard the whole conversation.
The defendants' counsel objected to the witness testifying to a part of a conversation, as he had not heard the whole of it. Objection overruled, and the witness proceeded.
The plaintiff told the witness that he had engaged a still to Smith, the defendant, and asked him when he could get it ready. Witness answered that he could set no certain time, as he was pressed with work, but that he would do it as soon as he could. Davis then said to Smith, "You shall have it as soon as we can do it." They went over the terms in the witness's hearing — the new still at fifty-five cents per pound for all except the worm, which was to be at sixty cents; and the old still two for one, except the worm, which was to be at twenty cents. Smith said he wanted a good 15-barrel still of good workmanship and material. The still furnished was of that character. While the witness was at work upon it he was hurried up by the plaintiff.
To the reception of this evidence the defendants excepted.
There was a verdict and judgment for the plaintiff for $531.75. The court refused the defendants a new trial, whereupon they appealed.
MacRae Broadfoot for appellants. (119)
Hinsdale, with whom was Guthrie, contra.
The plaintiff sold the defendant a still and sued him for the price. The defendant set up a counterclaim for damages which he sustained by reason that the plaintiff did not deliver the still as soon as he had agreed to deliver it. The plaintiff and the defendant were both witnesses, and the point in dispute between them was whether the still was to be delivered on a day certain, as the defendant alleged, or as soon as it could be made, as the plaintiff alleged. To sustain his version, the plaintiff called his workman, who testified that while hammering on a still he was called by the plaintiff, who was in conversation with the defendant, and when he got in their presence the plaintiff told him that he had engaged a still to the defendant, and asked him when he could have it ready. He replied that he could not fix a time certain; that he would finish it as soon as he could. The plaintiff then said to the defendant, "You shall have it as soon as we can do it."
This certainly tends to prove that no time was fixed, and to sustain the plaintiff.
But the defendant objects to the testimony upon the ground that the witness did not hear all the conversation between the plaintiff and defendant; they were talking before he went into their presence, and they talked afterwards. They went over the terms of the contract and he thinks he heard all the bargain, but not all the conversation. (120) And so the defendant insists that the testimony is subject to the objection of being "fragmentary," as it is called in the books.
We do not think so, for the reason that if he heard all the bargain, as he thinks he did, then the balance of the conversation, whether it was the chaffering about the bargain, or whether about other matters, was unimportant. At any rate the witness heard what he was called up to hear, and all that they wanted him to hear; he was, to that extent, a witness called on by both parties, and it was competent for him to tell what they agreed he should hear. It is not like the case of a meddler who chooses to hear a fragment of a conversation in the interest of one party, without hearing how it may have been explained or varied by other parts of the conversation. Such evidence is worth very little, and generally is not competent at all.
The other exceptions by defendants were abandoned in this Court. There is
PER CURIAM. No error.
Cited: S. v. Carson, 95 N.C. 596; S. v. Robertson, 121 N.C. 553.