Neil v. L. D. Childs & Co. , 32 N.C. 195 ( 1849 )

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; Bradhurstv. 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.