Brantley v. Marshbourn

AlleN, J.

The evidence of 0. B. Brantley and of S. H. .Brantley, relating solely to a transaction taking place between themselves, and at which the deceased Marshbourn was not present, both S. H. and C. B. Brantley being alive, does not come within the letter or the spirit of section 1631 of the Ee-. visal. Bunn v. Todd, 107 N. C., 266.

It does not refer to a conversation or transaction with a deceased person.

It is equally clear that the declarations of Marshbourn against his interest were competent, and those in his own favor were properly excluded.

The record is not entirely clear as to the evidence of J. J. Pitts, but we infer that he produced the books of the partnership in existence at the time Marshbourn was alive, showing the entries of the capital stock, and that it did not appear from these entries that Marshbourn had any interest therein. If so, the evidence was competent, as the claim of the defendants is that at that time Marshbourn had bought an interest in the capital stock of S. H. Brantley, and as he had charge of the business and was in possession of the books, it was a reasonable inference that if he owned an interest in the capital stock it would have been entered, and the failure to find such entry was a circumstance which the jury had the right to consider.

The exceptions to the charge as they are stated in the record are not insisted upon by counsel for the defendant, and the charge seems to be free from objection.

One of the assignments of error refers to an incident occurring during the argument of one of the counsel for the defendant, but as there is no exception in the case on appeal relating to the matter, it cannot be considered. Morse v. Freeman, 157 N. C., 385.

No error.