Boggan v. . Horne , 97 N.C. 268 ( 1887 )

(McPeters v. Ray, 85 N.C. 462; Bost v. Bost, 87 N.C. 477; cited and approved.) There was a judgment for the defendant and the plaintiff appealed. This action is to recover possession of a bale of cotton, a horse, and a wagon, claimed under a chattel mortgage made by the defendant to the plaintiff, in January, 1882, to secure a note of $75, due on 1 October thereafter. The property is described in the deed as a "one-horse wagon, one gray horse, and all my crops of every kind, raised by me during the year 1882," of which the bale claimed formed a part. Under the auxiliary process of claim and delivery, provided in The Code, sec. 331 and following, the articles were seized by the sheriff and delivered to the plaintiff, who sold them and appropriated the proceeds to his own use.

It is unnecessary to advert to the pleadings, further than to say that the defendant alleged that he had paid the secured debt and discharged the mortgage. The jury upon issues submitted to them say: (1) That the plaintiff is not entitled to any of the goods seized; (2) that the defendant did not wrongfully detain them; and (3) that the value (270) of the cotton is $42.50, of the horse $25, of the wagon $22.50; and that (4) the compromise and settlement set out in the complaint, as entered into since the commencement of the action, was not made.

Upon the trial the plaintiff took two exceptions to evidence offered and admitted against his objection.

Exception 1. The defendant in his testimony said: "The horse was worth about $75," and that he "gave that for him." The exception is to the latter part of the statement.

If authority were necessary, our own ruling upon the competency of such evidence in the case of McPeters v. Ray, 85 N.C. 462, disposes of the question, and we may consider that as an estimate of value, and not an opinion expressed. The actual purchase at the price is an act done in pursuance of an opinion and imparts greater force to it. In Small v. Pool, 8 Ired., 47, it was held competent to prove what the plaintiff gave, and what he sold an alleged unsound slave for, in estimating damages in an action of deceit.

Exception 2. In the course of the defendant's examination on his own behalf, a book was produced and identified as belonging to the defendant (who could not read), in which were entered advances made to the defendant, some of them in the plaintiff's own handwriting. The item in the book were read, the plaintiff objecting to any of them going to the jury not written down by himself. This was during the examination of the defendant, a witness for himself, and he testified that he "kept this book for the law. Some things plaintiff put down on it himself. As to the others, plaintiff gave defendant orders, and told him to tell the clerk to put the things down when defendant got them, and the clerk did put themdown when the defendant got them, and this book contains all that defendantgot."

Again he repeats, "this book contains everything defendant got from plaintiff," reiterating the manner in which the entries were made by merchants who filled the orders. Certainly this meets the objection, for the fact of receiving these advances by the defendant (271) and that they are all that were made by the plaintiff, of which the entries were memoranda to preserve their accuracy, is sworn to and proved independently; such evidence is clearly proper, and the exception to the ruling untenable.

The error assigned in the motion for a new trial "in instructions to the jury" is in terms too vague to be entertained. The assignment should specifically point out wherein the erroneous charge consists; and this rule of practice has been often asserted and its observance required. Bost v.Bost, 87 N.C. 477.

There is no error and the judgment must be affirmed.

No error. Affirmed.

Cited: McKinnon v. Morrison, 104 N.C. 362; Perry v. Ins. Co.,137 N.C. 403; Wilson v. Scarboro, 169 N.C. 656; Canton v. Harris,177 N.C. 14.