Opinion · Supreme Court of North Carolina

Grandy v. . Ferebee

Grandy v. . Ferebee, 68 N.C. 356 (N.C. 1873)

Type: Opinion
Court: Supreme Court of North Carolina
Jurisdiction: North Carolina
Date: 1873-01-05
Topic: general

Reads, J. It is common learning that the declarations and acts of a third person are not evidence against a party, unless such third person be his agent. And it is equally well settled that the agency must be established otherwise than by such declarations and acts, before they are admissible. And it is also settled that just as the Court in all other cases must judge of the competency or admissibility of evidence, so in this case the Court must be satisfied that prima Jade the agency is proved before the declarations and acts can go to the jury. Monroe v.

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Cited by: 13 opinions

GRANDYv. FEREBEE,68 N.C. 356(1873)

TITUS T. GRANDY v. W. B. FEREBEE and EDWIN FEREBEE.

Supreme Court of North Carolina

(January Term, 1873.)

1. The declarations and acts of a third person are not evidence against a party, unless such third person be his agent; and the agency must be established before such acts and declarations are admissible.

2. A receipt for money given by an alleged agent for a specific purpose is not admissible to prove the fact of agency. The agency being estabblished [established]prima facieby other evidence, to the satisfaction of the Court, such receipt becomes then proper evidence.

3. The depreciation of Confederate money is not between private parties, constructive notice to the agent and the person paying the same, that the principal will not receive it. Otherwise, where the receiving agent is an officer of the Court, or one acting in a fiduciary capacity.

APPEAL fromMoore, J., at Aug. (Special) Term, 1872, of GRANVILLE.

The plaintiff, at Spring Term, 1867, of GRANVILLE, sued the defendants in debt upon their bond for $1,396.86, of date 1 January, 1858, and payable to plaintiff or bearer. At the return term of the writ, the defendants pleaded "payment and set off," and the cause was continued and regularly transferred and docketed in the new Superior Court.

Upon the trial in the Court below, to sustain the plea of "payment" (the execution and delivery of the bond being admitted), the defendant, W. B. Ferebee, was examined and in substance testified that in July, 1863, he met with a brother of the plaintiff in Camden County, and asked him if they were taking Confederate money in Granville, the place where the plaintiff and this brother resided. Upon being informed that they were taking such money in that section, he mentioned that the plaintiff held his bond (the one in suit); that he wished to pay it off, and asked the brother if he would take some money to the plaintiff for that purpose, that the plaintiff's brother consented to take the money, which in a few days afterwards was handed to him, Confederate and Virginia Treasury notes, together with a note on (357) plaintiff for about $60, amounting in all to about $1,698. For this, the brother gave the following receipt, which was read to the jury, to wit:Page 250

"24 July, 1863. Received of W. B. Ferebee for T. T. Grandy, sixteen hundred and ninety-eight dollars, in payment of a note of said Ferebee, held by T. T. Grandy. "W. S. GRANDY."

There was a verdict allowing the set-off of $60 on the part of the defendants, and finding a payment of $1,638, and for the plaintiff for the balance of principal and interest of the bond declared on. Motion by plaintiff for a new trial; motion overruled. Judgment in accordance with the verdict, and appeal by plaintiff.

Lanierfor appellant.HargroveandBatchelor, Edwards Batchelor, contra.

READE, J.

It is common learning that the declarations and acts of a third person are not evidence against a party, unless such third person be his agent. And it is equally well settled that the agency must be established otherwise than by such declarations and acts, before they are admissible. And it is also settled that just as the Court in all other cases must judge of the competency or admissibility of evidence, so in this case the Court must be satisfied thatprima faciethe agency is proved before the declarations and acts can go to the jury.Monroe v.Stutts,31 N.C. 49;Williams v. Williamson,28 N.C. 281. It follows, that to receive the declarations and acts along with other evidence tending to prove the agency, and submit the whole to the jury, from which to find the agency, without explanation that the declarations and acts themselves are not to be considered for that purpose, is erroneous. In this case, the receipt which the alleged agent gave (362) for the money was a part of the evidence left to the jury, not merely to show that he received the money (for which purpose it would be competent, the agency being otherwise proved), but to prove the agency itself, for which purpose it was clearly incompetent.

For this error there must be avenire de novo. It is not necessary that we should notice the other points made, as they will probably not arise on the next trial, except the point made by plaintiff, that even supposing the agency proved, still the great depreciation of Confederate money at that time was constructive notice to the agent and the defendant that it would not be received. We have so held, where the receiving agent was an officer, such as Clerk, Sheriff, and the like, or was a guardian, administrator and the like; but the inclination of our opinion is against the plaintiff upon this point, the agency being a personal one. It would operate as a payment of the debtpro tanto, if it were so received, and would leave the plaintiff to his remedy against his agent.

PER CURIAM.Venire de novo.Page 251Cited: Henry v. Willard,73 N.C. 43;Gilbert v. James,86 N.C. 247;Johnson v. Prairie,91 N.C. 164;Taylor v. Hunt,118 N.C. 173;Summerrow v. Baruch,128 N.C. 204;West v. Grocery Co.,138 N.C. 168;Jackson v. Tel. Co.,139 N.C. 351.

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