Opinion
August Term, 1858.
Where a part of the declarations of a party confess a prima facie cause of action, and another, matter in avoidance, it was Held not be error in the judge to instruct the jury that, they might reject the latter declarations, if they believed them untrue, and find a verdict for the plaintiff on the former part.
ACTION of ASSUMPSIT, tried before BAILEY, J., at the Special Term, July, 1858, of Buncombe Superior Court.
N.W. Woodfin and Merriman, for the plaintiffs.
Gaither and J. W. Woodfin, for the defendant.
The action was brought for goods sold by the plaintiffs, who are merchants in the city of Charleston. The evidence was that an account of the goods was presented to the defendant by the plaintiff's counsel, and he was asked whether it was necessary to take testimony in Charleston, to prove the persons composing the firm of Rankin, Pulliam Co., and that the goods were shipped to him. The defendant said in reply that "there was no necessity for making this proof; that he had ordered the goods, and the account was correct, and that the goods had been shipped to him in the usual way, but that the plaintiff had contracted to deliver the goods at Athens, Georgia, and they had not been delivered there, and that he could prove this by David Rankin, a clerk in the store of the plaintiffs." This conversation occurred about three years before the trial, and it was proved that David Rankin had, since then, been in the county of Buncombe long enough for his deposition to have been taken, and that nearly the whole time since then, he had lived in the city of New York.
The Court charged the jury, that as the plaintiffs relied on the admissions of the defendant, they were bound to take into consideration all that he said to the plaintiffs' counsel, as well that which was in his favor, as that which was against him, and that if the contract was as he alleged, — that the goods, were to be delivered at Athens, Georgia, the plaintiff, could not recover; because there was no evidence that they were delivered at that place. The Court further instructed the jury, that although they might hear all the defendant said, and consider all, they were not bound to believe all; and they might take into consideration the fact that the defendant had not taken the deposition of the clerk, if he had it in his power to do so. The defendant's counsel excepted.
There was a verdict for the plaintiffs and a judgment, from which the defendant appealed.
We think the question, in respect to the admission of the defendant, was left to the jury in a very clear and satisfactory manner, and the defendant had no reason to complain of it. If the allegation, "that the plaintiffs had contracted to deliver the goods at Athens," had been so connected with the other admissions, that it could not be stricken out and treated as surplusage, and still leave enough to establish the fact of the sale and delivery of the goods, the exception on the part of the defendant, would be well taken. But such is not the fact. According to the statement of the case, the defendant admits that "he had ordered the goods — the account was correct, and the goods had been shipped to him in the usual way" — thus confessing a prima facie cause of action, and then he adds, by way of avoidance, "but the plaintiffs had contracted to deliver the goods at Athens"; and he treats it as a matter alleged in avoidance, by averring his ability to prove it by David Rankin. So, if this part of the admission be rejected as surplusage, because not believed to be true, enough will be left to support the action.
If the admission had been in this wise, "I ordered the goods, the account of them is correct, but they were ordered to be delivered to me at Athens", the exception would have been well taken; for strike out the admission as to the place of delivery, and there is not enough left to prove the facts necessary to give the plaintiffs a cause of action. But this point, although earnestly made in the argument is not presented by the case as stated in the record. There is no error.
PER CURIAM. Judgment affirmed.