Walton v. . Smith , 30 N.C. 520 ( 1848 )

This is an action on a guarantee alleged to be contained (521) in a letter addressed by the defendant to the plaintiff. The case is as follows: The defendant lives in the county of Henderson, in this State, and in January, 1839, wrote to the plaintiff, who lives in the city of Charleston, a letter of credit in favor of the two men, Posey and Lane. This letter was duly delivered to the plaintiff by Posey, and the plaintiff agreed to furnish him goods, which he did to the amount of $186, for which Posey gave him a note in the name of himself and Lane and payable six months thereafter. After this note came to maturity the plaintiff sued Posey and Lane upon it, obtained judgment, but failed to collect all that was due, in consequence of their inability to pay. This action was then commenced, and the plaintiff obtained a judgment for the balance due on the note, from which the defendant appealed to this Court. Many objections were made by the defendant to the recovery of the plaintiff, none of which is it necessary for us to examine, as an obstacle has arisen here growing out of the case as stated which is decisive of the cause. The defendant sets forth in his bill of exceptions that the plaintiff read in evidence a letter of the defendant, dated January, 1839, a copy of which, marked A, is sent as a part of the case. No such letter or copy of a letter is among the papers in the cause. At the last term of the Court, when we were called on to look into the case, its absence was detected and, supposing it might by mistake have been retained by the Clerk of Rutherford Superior Court, where the cause was tried, upon the suggestion of a diminution of the record, a certiorari was issued. A certified copy of the record, as it remains in his office, has been transmitted to us without containing the required paper. It (522) is evident, without it or an agreement between the parties as to its contents, the Court cannot determine the questions raised by the defendant. It is the foundation of the plaintiff's claim that was before his Honor who tried the cause, and the whole of the charge addressed to the jury was made in reference to it. It is the rule in this Court, as in every other court of errors, that he who alleges error must show it. The judgment appealed from must stand as correct until it is shown to be incorrect. The defendant has made that letter a part of his case; it is not here to be seen and considered by the Court; it is admitted to have been lost, and the parties cannot agree as to its contents. We are compelled, therefore, to say we see no error in the judgment below.

PER CURIAM. Judgment affirmed.

Cited: S. v. Orrell, 44 N.C. 218; Davis v. Shaver, 61 N.C. 18.