Short v. . Yelverton , 121 N.C. 95 ( 1897 )

Furches, J.:

This action was brought to recover the price of fertilizers which the plaintiff alleges he sold to the defendant and delivered to the defendant’s tenants, as directed to do by the defendant. The defendant denied that he bought any fertilizer of plaintiff, or that he ever agreed to pay for fertilizers to be delivered to his tenants. The plaintiff testified that he sold the fertilizers to the defendant to be delivered to his tenants (the Bentons) at the price of 325 pounds lint cotton per ton. The defendant introduced the Bentons as witnesses, both of whom testified that they bought the fertilizer of the plaintiff on their own account at the price of $20.50 per ton and that the defendant Yelver-ton had nothing to do with it. The plaintiff was then allowed, under objection of defendant, to prove by Junius jSlocumb, the book-keeper of Weil the party from whom plaintiff bought the guano, that he was to pay $20.25 per ton, upon the same time the Bentons testified they were to have it — the plaintiff having testified that it cost him 25 cents per ton to deliver the fertilizer.

The court in charging the jury, among other things, said: “In coming to a conclusion, you may consider the reasonableness of the evidence of any or all the witnesses. For instance, you may consider whether it is reasonable to believe that the plaintiff sold the guano at what it cost him, on the same time.”

_ Iii the admission of this evidence there was error and, emphasized as it was in the charge of the court, it is most likely that it prejudiced the defendant’s case. To make evidence competent and admissible “it must tend to prove the issue in dispute,” 1 Greenleaf Ev., Sec. 51. “Collateral facts, that is, facts collateral to the fact to be proved, are inadmissible,” Greenleaf, supra, Sec. 52. The issue in this case was not the value of the guano, but whether there was a contract of sale.

The evidence of Slocumb is no part of the res gestae. It is not an admission of defendant. It is not in corroboration of the testimony of any witness. It does not show motive. It affords an argument, but not a reason to sustain the plaintiff’s contention. It is collateral to the issue and “too remote to be allowed in evidence.” 1 Best on Evidence, Sec. 251 and 252.

There are exceptions to the charge of "the court, but as the error pointed out entitles the defendant to a new trial, and as these exceptions will not likely arise on a new trial, we have not considered them.

Error.