Opinion
(August Term, 1847.)
The declarations of a vendor, after he had sold property, are not evidence against his vendee as to the title of the property.
APPEAL from BUNCOMBE Spring Term, 1847; Dick, J.
Trover, brought to recover damages for the conversation of two barrels of brandy to the use of the defendant. The plaintiff first introduced a witness by the name of Patton, who stated that about 1 April, 1844, the plaintiff informed him that he, the plaintiff, had understood that one Bates, then residing in Hendersonville, was offering 40 cents cash per gallon for brandy, and it was agreed between the witness and the plaintiff that each of them should send two barrels of brandy to Bates. The brandy was sent accordingly by one Byers. Patton further stated that he expected to get the money for his two barrels of brandy on the return of Byers, but did not receive it. He further stated that neither Williams nor himself had seen Bates or made any contract with him before the brandy was sent by Byers. Byers was then examined. He stated that he was employed by Williams (the plaintiff) to take the brandy to Bates. He also took a paper from Williams to Bates, which he understood was an order for the money due for the brandy. When he got to Hendersonville, he did not find Bates at his grocery, but was informed that he was at the courthouse. He found Bates at the courthouse, who stated he was much engaged, and could not attend to receiving the brandy then, and directed the witness to have the brandy placed in his (Bates') yard and he would attend to it when at leisure. The brandy was placed (443) according to the direction. The witness then presented to Bates the paper sent by Williams. Bates said he could not then attend to it, but he would see Williams and Patton the next week at Buncombe court. The defendant then introduced one Gilreath, who stated that the plaintiff was indebted to him on a justice's judgment, and, for the purpose of discharging the same, the plaintiff drew an order on Bates, in the words and figures following, to wit: "Mr. J. J. Bates. Sir: Pay Penil Gilreath $65 for the brandy I sold to you. Jesse Williams." This order Gilreath presented to Bates, but it was not paid, and was returned to Williams. The defendant then proved that, after the return of the above order to Williams, Bates, being much indebted to various persons, on ........., 1844, by deed conveyed in trust to the defendant, for the benefit of his creditors, the four barrels of brandy above mentioned and all his other effects, and delivered the brandy to the defendant. The plaintiff then proposed to prove the declarations of Bates, made in the presence of the defendant, after the execution and delivery of the deed in trust and after the delivery of the brandy to the defendant, for the purpose, as he alleged, of showing that there was no sale in fact of the brandy by the plaintiff to Bates. The court rejected the evidence. The plaintiff's counsel prayed the court to charge the jury that the facts sworn to by Patton and Byers did not in law constitute a sale and delivery of the brandy to Bates. The court refused to give the instruction prayed for, but charged the jury that if they believed from all the evidence submitted to them there was a sale and delivery of the two barrels of brandy to Bates by the plaintiff, the property vested in Bates, and he had a right to convey it to the defendant, and the plaintiff was not entitled to recover.
(444) The jury found for the defendant, and a new trial being moved for and refused, and judgment rendered according to the verdict, the plaintiff appealed.
Baxter for plaintiff.
Gaither for defendant.
Bates assigned by deed the two barrels of brandy, now in controversy, to the defendant. The vendor is never permitted, after he has sold property, to be heard to say that he never had any title to that property, nor are any declarations of his made after the sale, whether in the presence of the vendee or not, admissible in evidence to defeat or impair the sale. The judge did not err in refusing to receive the evidence offered of the declarations of Bates, made in the presence of the defendant.
Secondly, the plaintiff insisted that the court should charge the jury that the evidence given by the two witnesses, Patton and Byers, did not of itself establish contract of sale of the brandy. The court refused, but charged the jury that if they believed, from all the evidence submitted to them, that there was a sale and delivery of the brandy, then the property vested in Bates. We do not see any error in the court's refusing to charge on garbled parts of the evidence, as the plaintiff did not pretend to allege that the residue of the evidence offered by the defendant, to wit, the order drawn by the plaintiff on Bates in favor of Gilreath, was a forgery. That order was an admission, in writing, by the plaintiff, of a sale of brandy by him to Bates. It is possible that the order may have been drawn for the price of another lot of brandy. But there is nothing in the case to show that the plaintiff ever had any dealings in brandy with Bates except the single lot carried by Byers. If the plaintiff had insisted that the order had not been proved to be his, or that it was a forgery, then there would have been some propriety in his (445) prayer to the judge to charge as he requested.
PER CURIAM. No error.
Cited: Hodges v. Spicer, 79 N.C. 229.