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

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:

"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. 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 facie the 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 a venire 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 debt pro tanto, if it were so received, and would leave the plaintiff to his remedy against his agent.

PER CURIAM. Venire de novo. Cited: 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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