Manufacturing Co. v. . Bray , 193 N.C. 350 ( 1927 )

The plaintiff sold material for a public school building in Siler City. The defendant, T. B. Bray, and others compose the board of education of Chatham County, and the defendant, C. N. Bray, is chairman of the board of school trustees of Siler City.

The evidence tended to show that the material was shipped to the North State Covering Company and not to the contractors, Hancock Davis, but the contention of the plaintiff was that E. F. Eure, who was trading as the North State Covering Company, bought the material as agent for the contractors, Hancock Davis. The agency of Eure was denied by the contractors. The evidence further showed that the school board retained in its possession the sum of $1,350.32, which was the balance due on plaintiff's claim.

The following issue was submitted to the jury:

What sum, if any, are the defendants, Hancock Davis, indebted to the plaintiff, A. T. Griffin Manufacturing Company?

The jury answered the issue, No.

Judgment was thereupon entered in favor of the defendant, and the plaintiff appealed. What is the law with respect to the admissibility and competency of telephone conversations?

The question of law raised by the record is based upon the following excerpt from the record:

"In regard to the telephone conversation with Hancock Davis about some of this material, go ahead and state what happened?"

(A). "I had a phone call, and a gentleman that said it was Mr. Davis, and whose voice I had no right to doubt, said to ship him" — the defendants, Hancock and Davis objected on the ground that the witness had not qualified as being familiar with Mr. Davis' voice, whereupon the witness, upon being further questioned, stated — "I think I had met Mr. Davis the first time in May of that year, and I had heard him talk quite a bit. I would not say that I would know his voice over the telephone. Whoever it was at the other end of the phone said he was Mr. Davis, and he further identified himself by saying that he was of the firm of Hancock Davis. There was nothing about his voice that led me to believe that it was any other person than Mr. Davis and I think it was he."

"The courts of justice recognize the useful intercommunication in modern life of the telephone. They are now installed in almost every home and place of business. They have become a necessity, as a medium to the conduct of business." Clarkson, J., in Sanders v. Griffin, 191 N.C. 450. Dean Wigmore in his Treatise on Evidence, 2 ed., sec. 2155, declares: "It is generally conceded that a person may be recognized and identified by his voice if the hearer is acquainted with the speaker's voice. . . . No one has even contended that, if the person first calling up is the very one to be identified, his mere purporting to be A is sufficient, any more than the mere purporting signature of A to a letter would be sufficient."

The same principle is declared in Atlantic Coast Realty Co. v.Robertson, Exrs., 135 Va. 247, as follows: "So far as the rule has been formulated, it is that they are (telephone conversations) governed by the same general rules of evidence which govern the admission of oral statements made in original conversations, except, of course, that theparty against whom the conversation is sought to be used must beidentified; but the identity of the other party to the conversation may be established either by direct or circumstantial evidence." Lumber Co. v.Askew, 185 N.C. 87.

The whole question, therefore, resolves itself into the inquiry as to whether or not there was sufficient identity of Mr. Davis to render the conversation competent and admissible as against him.

The plaintiff testified: "I could not say that I would know his voice over the telephone. Whoever it was at the other end of the phone said he was Mr. Davis, and he further identified himself by saying that he was of the firm of Hancock Davis."

We are of the opinion that the evidence was inadmissible and properly excluded from consideration by the jury, for the reason that there was not such identity of the party charged with liability as contemplated by law.

The plaintiff contends, however, that the contractors, Hancock Davis, should be held liable at all events, because the material was actually used in the building. The record does not disclose that any surety bond was given for the performance of the contract as required by C. S., 2445 and amendments thereto. Under the decisions of this Court no lien could be acquired upon the school building, and, as no bond was given, the plaintiff's remedy is against the contractors, Hancock Davis, or E. F. Eure, trading as North State Covering Company, to whom the material was sold. Warner v. Halyburton, 187 N.C. 414; Noland v. Trustees, 190 N.C. 250;Robinson Mfg. Co. v. Blalock, 192 N.C. 407.

The liability of Hancock Davis, the contractors, was submitted to the jury and the jury has answered the issue against the plaintiff. Eure, trading as North State Covering Company, was not a party to the action, and we discover no error in the trial of the cause.

No error.