# Moore v. Palmer

> Supreme Court of North Carolina · June 11, 1903 · 132 N.C. 969

URL: https://www.frixlaw.com/law-library/cases/6694525

## Case

- **Full name:** MOORE v. PALMER
- **Court:** Supreme Court of North Carolina
- **Decided:** June 11, 1903
- **Citations:** 132 N.C. 969
- **Precedential status:** Published
- **Opinion:** Concurrence by Walker
- **Judges:** Clark, Douglas, Montgomery, Walker
- **Cited by:** 5 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

Walker, J.,
concurring. This action was brought ,to recover the amount of an account for goods alleged to have been sold and delivered by the plaintiffs to the firm of Palmer & Eudy. The defendant Palmer filed no answer and did not deny his individual liability, but the defendant Moon, administrator of Eudv, did answer and deny the partnership, and also denied that any goods had been sold or delivered to his intestate, as a member of said firm or otherwise.
The plaintiffs, in order to establish their claim, introduced as a witness, the plaintiff, Moore, who on his examination was asked to state to whom plaintiffs sold the goods. The defendants objected to this question, the objection was overruled and the defendants excepted, the court holding at the time “that anything the witness might say about the intestate Eudy being connected with the business or any transaction between him and the plaintiffs would be incompetent and should not be considered by the jury, but that the witness might state to whom he sold the goods as affecting and hearing upon the liability of the defendant Palmer.” Thereupon, the witness testified “that he had repeatedly seen the intestate Eudy, about the mine which was being cleared up; that he had re *972 peatedly beard him giving orders to the employees there working under the defendant Palmer; that he had repeatedly carried Eudy there, and had gone with him from his home, where Eudy boarded, to the mine. That the bill sued on was for goods furnished to laborers working for Palmer and Eudy and were furnished upon the order of Palmer; that the balance due plaintiffs April 7, 1897, was $935.63, and that no part of the same was paid, but the whole was still due and owing. That the mine being cleaned up was the Lindsay mine. That the account originally was for a sum between three and four hundred dollars; that $50 had been paid thereon in December, 1896, and $44 in the spring of 1897. That Eudy died June 15, 1897.”
It is conceded that the court may admit testimony, which is competent against one of the parties to the suit and not against another, for the purpose of charging with liability the party against whom it is competent. The rule is well settled, but I do not think it is applicable to this case. The testimony may be admitted and restricted to one of the parties, but it should not be admitted in such a form as is calculated to prejudice the other party, if this can be avoided.
Why it was necessary to show the liability of Palmer, when he had not denied it and was not disputing the plaintiffs’ claim, I can not understand. It will be observed that while the court ruled that Moore might state “to. whom he sold the goods as affecting and bearing upon the liability of the defendant Palmer,” the testimony elicited from the witness Moore almost wholly related to dealings, transactions and communications with Eudy. It is true that the court, in its charge, told the jury that so far as the testimony of Moore “tended to bear upon the question of partnership between Palmer and Eudy or any contract with Eudy and the witness, or any conversation or transaction between the witness and Eudy, it was excluded and his testimony was only bind *973 ing upon the defendant Palmer,” but I do not think that this caution was sufficient or that the evidence, under, the circumstances of the case, should have been admitted. Why do the vain thing of proving the admitted liability of Palmer, and what effect could the testimony have had but to. prejudice the administrator of Eudy ? It was either relevant for the purpose of charging the administrator of Eudy or it was not relevant at all. The court thought it was incompetent and in a general way told the jury to disregard it except as to Palmer, but did not tell them which part of it was competent as to Palmer and incompetent as to Eudy’s administrator. How could the jury be expected to make the discrimination ? But the chief error was in submitting the testimony to the jury at all, as it was not necessary to show Palmer’s liability and the testimony might have influenced and no doubt did influence the jury in returning a verdict against Eudy’s administrator.
The court below permitted the witness Palmer to testify that the goods were furnished by the plaintiffs, on his order, for the firm of Palmer & Eudy. The jury were afterwards, instructed that the testimony could only be considered as against Palmer for the purpose of fixing him with liability.
What I have said as to the testimony of the witness Moore is equally applicable to the testimony of Palmer. He was alleged to he a member of the firm composed of himself and Eudy and was interested in the event of the action, as'a recovery against Eudy would diminish his liability to the plaintiffs by one-half. Fertilizer Co. v. Rippy, 123 N. C., 656 ; Lyon v. Pender, 118 N. C., 150 . As I have said, no answer was filed by Palmer and there was no denial of or dispute as to his liability. The jury may, therefore, have been misled by the admission of his testimony. They could not very well consider it as to Palmer, for he did not deny his liability, and it is impossible to tell what influence it may have had upon *974 the jury in passing upon the real issue involved as to the liability of Eudy’s estate, notwithstanding the caution of the court.
If Palmer had denied his liability, it would have been sufficient to establish it for the plaintiffs to have shown by him that he ordered the goods without requiring him to state for whom he ordered them. In this case, the judge could have admitted the testimony in a way so as to have charged Palmer, if he had denied his liability and it was necessary to charge him, without, at the same time, injuriously affecting Eudy’s estate. The proof, of a partnership as against Palmer, so as to charge him as a member of the firm, would necessarily involve the finding by the jury that there was a partnership between Palmer and Eudy and in this way the estate of Eudy may have been prejudiced. The proof should have been so confined as to have related solely to Palmer’s individual liability. If Palmer ordered and received the goods, he was liable, whether he was a partner or not It is apparent, I think, that the testimony of Moore and Palmer was not admitted merely to show a delivery of the goods to Palmer and the value thereof.
If the jury did not base their verdict on the testimony of the witnesses Moore and Palmer, I do not see upon what testimony they found that the goods had been sold to Palmer and Eudy. The testimony of Charles Palmer, the only other witness in the case, except Ragon, who testified about an entirely different matter, related to the partnership and not to the sale and delivery of the goods.
The judge ruled out all of the testimony of the witnesses Moore and Palmer, so far as it tended to- charge Eudy’s estate with liability, and, having done so, no testimony remained upon which to base a verdict as to the sale and delivery of the goods to the firm, Charles Palmer, as we have said, testifying only to the partnership.
*975 It follows, therefore, that there was no evidence of the sale and delivery of the goods, so far as Eudy was concerned, and it would seem that the motion of the defendant in the court helow to dismiss the complaint under the statute should have been granted, and there was error in not doing so, for which a new trjal should be awarded.
Douglas, J., concurs in the concurring opinion of Walker, J.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6694525. Public record. Not legal advice.