Opinion
August Term, 1849.
1. A party does not make one his witness by taking his deposition, which he declines to read, or by having him subpoenaed, and then declining to examine him.
2. All contracts are several, although made by partners.
APPEAL from the Superior Court of Law of MECKLENBURG, at Special Term in July, 1849, Bailey, J., presiding.
This was an action of assumpsit, brought by the plaintiffs as partners under the style of Neil, Brown Williams, against the defendants, as partners under the style of L. D. Childs Co. The contract on the part of the defendants was to make and deliver certain machinery for a cotton factory, and the breaches alleged were that the machinery was not of proper materials and workmanship, nor delivered according to the contract. The plaintiffs introduced one Stowe as a witness, who proved that, in January, 1846, a contract was entered into between the plaintiff Neil, acting for the firm of Neil, Brown Williams, and the defendant Childs, acting for the firm of L. D. (196) Childs Co., in which it was agreed that the defendants would make and deliver certain machinery for a cotton factory at their warehouse by 1 August succeeding, and the plaintiffs agreed that it should be paid for in cash on the delivery. It was also agreed that the machinery should be made of the best materials and in the best style of workmanship. On cross-examination it was stated by the witness that at the time the contract was made he was a clerk of L. D. Childs Co., then under the direction of the defendant Childs, and that, in the presence of the plaintiff Neil, he took down a memorandum in which he specified the kinds of machinery and the price of each article. It was objected that proof of the verbal contract could not be given if the contract was written in the manner stated by the witness. The objection was overruled. The witness proved that the machinery was not delivered until January, 1847, and that its materials and style of workmanship were inferior to those agreed upon. The defendants then offered and read the deposition of one Springstein, to prove the value of the machinery. This deposition had been taken by the plaintiffs, but was not offered by them.
The plaintiffs introduced a witness to prove that the witness Springstein had hostile feelings to them when the deposition was taken, and that he had made statements contradictory of the deposition before it was taken. This testimony was objected to, but admitted by the court. The defendants objected that the plaintiffs could not recover, because there was no proof that the machinery, though delivered to the plaintiffs and received by them, had been paid for before the suit was brought. The objection was overruled. It was objected, further, that the plaintiffs could not recover because there was no proof of the partnership of L. D. Childs and W. J. Hoke. On this (197) point the court charged the jury that, though this were true, yet, if the plaintiffs had satisfied them that they were entitled to recover against the defendant Childs, they might render their verdict against him only. The jury found a verdict against both, and from the judgment thereon the defendants appealed.
Alexander, Osborne and Bynum for plaintiffs.
Landers and Guion for defendants.
There is no error in any of the matters excepted to by the defendants. The memorandum made by the defendant's clerk was not signed by the parties, or intended by them as the memorial of their contract. It was a private entry for the use of the defendants, and might have been used to refresh the memory of the witness. If the witness Springstein had been called and examined, or if his deposition had been read by the plaintiff, the exception would have raised the question whether a party can impeach his own witness in whose testimony he is disappointed, by showing that he had, on other occasions, stated differently. The reason for not allowing a party to impeach his own witness, by showing his general character to be bad, is that he shall not be heard to say that he attempted to impose on the jury by calling a witness whose general character is known to be bad; but this reason does not apply to the exclusion of declarations made on other occasions, and by which the party calling a witness might have been derived. The question is one of some interest, but we are not called on now to decide it, as it does not arise in this case, for a party does not make one his witness by taking his deposition, which he declines to read, or by having a witness subpoenaed and then declining to examine him.
The machinery was to be paid for on delivery. The payment of the price was not a condition precedent to the plaintiff's right of action. The defendant might have refused (198) to deliver it, unless the price was paid, or they were at liberty to deliver it and bring an action for the price. The last exception is also untenable. In an action against two, a recovery may be had against one of the defendants only, for all contracts are several, although made by partners. Jones v. Ross, 4 N.C. 335; Bradhurst v. Pearson, ante, 55. The question, however, does not arise, for the jury found a verdict against both defendants, and there is no exception on that ground. The judgment is affirmed.
PER CURIAM. Judgment affirmed.
Cited: Strudwick v. Brodnax, 83 N.C. 408; Hudson v. Jordan, 108 N.C. 13.