Collins v. Covert , 246 N.C. 303 ( 1957 )

98 S.E.2d 26 (1957) 246 N.C. 303

James A. COLLINS, E. B. Collins and Collins Auto Supply Company, a corporation,
v.
Alice C. COVERT.

No. 599.

Supreme Court of North Carolina.

May 22, 1957.

J. V. Morgan, Edward N. Post, High Point, for appellants.

James B. Lovelace, High Point, for appellee.

DENNY, Justice.

The plaintiffs' first assignment of error is based on the exception to the refusal of the court below to permit James A. Collins and E. B. Collins to testify in support of an allegation in their complaint as to a conversation between them and Charles W. Collins, now deceased, to the effect that after the agreement was signed on 30 June 1951, it was "agreed that the payments to be made to the ``widow' of either of them would terminate upon that ``widow's' remarriage and they agreed not to have the contract rewritten because of added attorney's fees for having that done."

Upon objection of defendant's counsel to the admission of the proffered evidence, the court below sustained the objection.

The pertinent provisions of G.S. § 8-51 read as follows: "Upon the trial of an action, * * * a party or a person interested in the event, * * * shall not be examined as a witness in his own behalf or interest, * * * against * * * a person deriving his title or interest from, through or under a deceased person * * concerning a personal transaction or communication between the witness and the deceased person * * *"

The testimony of a witness is incompetent under the provisions of the above statute when it appears (1) that such witness is a party, or interested in the event, (2) that his testimony relates to a personal transaction or communication with the deceased person, (3) that the action is against the personal representative of the deceased or a person deriving title or interest from, through or under the deceased, and (4) that the witness is testifying in his own behalf or interest. Sanderson v. Paul, 235 N.C. 56, 69 S.E.2d 156; Peek v. Shook, 233 N.C. 259, 63 S.E.2d 542; Bunn v. Todd, 107 N.C. 266, 11 S.E. 1043.

These plaintiffs are not only parties to this action but they are directly and primarily interested in the event of the action. Peek v. Shook, supra; Cartwright v. Coppersmith, 222 N.C. 573, 24 S.E.2d 246; Bunn v. Todd, supra; Stansbury on North Carolina Law of Evidence, section 66. This assignment of error is without merit and is, therefore, overruled.

Assignments of error Nos. 2 and 3 are based on exceptions to the construction the court below put upon the word "widow" as it appeared in the context of the contract executed on 30 June 1951.

The court held that the word "widow" as used in the buy and sell agreement referred to in the statement of facts, meant the person rather than the status of the surviving wife of any deceased party to said contract and in this cause meant Alice C. Covert, formerly Alice C. Collins, and that it was the intent of the parties for the word "widow" to have such meaning.

We think the construction placed on the word "widow" by the court below is correct. A careful consideration of the applicable provisions of the contract leads us to the conclusion that the parties to the contract intended at the time of its execution to place no limitation as to the length of time the $5 per share per month should be paid to the widow of any one of the three parties, except the time from the date of the death of her husband and the date final payment was made to the personal representative of her husband's estate for the purchase of his stock. The contract so provides in unequivocal and unambiguous language. Therefore, whether or not Alice C. Collins ceased to be the widow of Charles W. Collins when she remarried has no material bearing on the decision in this case.

These plaintiffs, with full knowledge of all the facts, continued to pay the defendant the sum of $200 per month for eleven months after her remarriage. A payment voluntarily made, with a knowledge of all the facts, cannot be recovered although there was no debt. Guerry v. American Trust Co., 234 N.C. 644, 68 S.E.2d 272; Williams v. McLean, 220 N.C. 504, 17 S.E.2d 644; Jones v. Provident Sav. Life Assurance Society, 147 N.C. 540, 61 S.E. 388, 25 L.R.A.,N.S., 803; Bernhardt v. Carolina & N. W. R. R., 135 N.C. 258, 47 S.E. 427; Bank v. Taylor, 122 N.C. 569, 29 S.E. 831; Brummitt v. McGuire, 107 N.C. 351, 12 S.E. 191; Devereux v. Rochester German Insurance Co., 98 N.C. 6, 3 S.E. 639; Board of Commissioners of Macon County v. Board of Commissioners, 75 N.C. 240. Even so, in our opinion, the defendant was entitled to these payments notwithstanding her remarriage, and we so hold.

The judgment of the court below is affirmed.

Affirmed.