Cheatham v. . Bobbitt , 118 N.C. 343 ( 1896 )

Avery, J.:

The word “ transaction ” is used in the stat-tute in reference to the joinder of actions (Gode, Sec. 267) in the sense of the conduct or finishing up of an affair, which constitutes as a whole the “subject of action ”. So the term “ personal transaction,” in its application to a. case like the one at bar, was intended to describe the whole of the negotiation or treaty between the original parties to it, out of which the cause of action arose. The plaintiff would have steered clear of opening the door to his adversary had lie gone no further than to testify to the delivery of the goods described in the bills to the defendant, because that was an independent fact, involving no account of either a personal communication or transaction between his intestate and the defendant.’ Johnson v Rich, at this Term. But, he started out by stating that the defendant “ purchased goods and merchandise ” from his intestate while the latter was merchandising in Raleigh, and proceeded to testify to the delivery of the articles so purchased, and that the bills offered in evidence were “ the originals of the bills of goods delivered to the defendant by his brother and himself.” To purchase is to “ obtain or secure, as one’s own, by paying or promising to pay a price”, (Standard .Dictionary,) and the question whether there was such an absolute sale by his intestate, and a purchase by the defendant, as must have been inferred from plaintiff’s testimony if believed, or whether the delivery was by the terms of the treaty to vest in the defendant, in whose custody the goods were placed, only a qualified property as bailee, as defendant testified, depended upon the finding by the jury of the facts constituting the history of the whole negotiation between the parties. The plaintiff testified that the defendant “purchased ” the goods delivered to him, as the result of all of the latter’s chaffering and treating with his intestate. The defendant was allowed to testify that, taking the whole transaction in reference to the goods together, they were delivered to him as a bailee to assist in carrying out a certain fraudulent understanding. The plaintiff, after opening the door to contradiction by testifying that there was a purchaser, cannot close it against his adversary by claiming that he testified to a completed transaction, when his adversary’s defense rests upon the idea that the agreement was made at a time and place •anterior to the delivery witnessed by the plaintiff, and was the most important part of the whole transaction from the beginning to the end of the negotiation, which terminated with the delivery. It was the plaintiff’s own folly, if, by 'testifying that the* whole transaction was in contemplátion -of law a purchase, he made competent testimony, to which he would otherwise have had good ground for objecting. The statute was passed for the purpose of protecting the -estates of dead men by inhibiting living persons from proving claims against their heirs or representatives upon testimony as to personal transactions or communications with such decedents. It would be dangerous to remove a barrier wdiich prevents unscrupulous men from indulging tlier cupidity by resorting to perjury, when the only person who could have contradicted them is dead. But it was not intended that the personal representative should testify to the declarations of the decedent, or as to a part of a transaction between him and a living person, which if believed would tend to fasten a liability on such living person, and then insist upon closing the month of the latter from explaining the whole transaction in such way as to rebut the prima facie case made against him. When the personal representative leaves the door open, it is not his province but that of the court to decide what may come in. So much i.f the transaction as was described in detail by the- plaintiff was consistent with his summing up of the whole and declaring it. a purchase. But, looked at in the light of the covinons agreement which defendant testified had been made, the billing and delivery of the goods were equally consistent with the defendant’s contention as to the facts. There was no error in the ruling complained of ■and the judgment must be affirmed. Affirmed.