Davis v. . Smith , 75 N.C. 115 ( 1876 )

The plaintiff sold the defendant a still and sued him for the price. The defendant set up a counterclaim for damages which he sustained by reason that the plaintiff did not deliver the still as soon as he had agreed to deliver it. The plaintiff and the defendant were both witnesses, and the point in dispute between them was whether the still was to be delivered on a day certain, as the defendant alleged, or as soon as it could be made, as the plaintiff alleged. To sustain his version, the plaintiff called his workman, who testified that while hammering on a still he was called by the plaintiff, who was in conversation with the defendant, and when he got in their presence the plaintiff told him that he had engaged a still to the defendant, and asked him when he could have it ready. He replied that he could not fix a time certain; that he would finish it as soon as he could. The plaintiff then said to the defendant, "You shall have it as soon as we can do it."

This certainly tends to prove that no time was fixed, and to sustain the plaintiff.

But the defendant objects to the testimony upon the ground that the witness did not hear all the conversation between the plaintiff and defendant; they were talking before he went into their presence, and they talked afterwards. They went over the terms of the contract and he thinks he heard all the bargain, but not all the conversation. (120) And so the defendant insists that the testimony is subject to the objection of being "fragmentary," as it is called in the books.

We do not think so, for the reason that if he heard all the bargain, as he thinks he did, then the balance of the conversation, whether it was the chaffering about the bargain, or whether about other matters, was unimportant. At any rate the witness heard what he was called up to hear, and all that they wanted him to hear; he was, to that extent, a witness called on by both parties, and it was competent for him to tell what they agreed he should hear. It is not like the case of a meddler who chooses to hear a fragment of a conversation in the interest of one party, without hearing how it may have been explained or varied by other parts of the conversation. Such evidence is worth very little, and generally is not competent at all.

The other exceptions by defendants were abandoned in this Court. There is

PER CURIAM. No error.

Cited: S. v. Carson, 95 N.C. 596; S. v. Robertson, 121 N.C. 553.