The controversy between the parties, though expanded into a great number of exceptions taken during the progress of the investigation before the referee, and again before the judge upon his review of the report, is in substance confined to the disposition of, and responsibility for the rent of the cotton made on the Deans farm during the years 1871 and 1872. The crops afterwards raised, and which pursuant to the contract were to be appropriated to the payment of the purchase money of the land, have passed into the defendant's hands, and the admitted amounts received on the sales of each year have been thus applied, and form charges in the account rendered by the referee against the defendant. The various questions made as to the admissibility of evidence are material only as affecting its sufficiency to sustain the findings of fact, alike by the referee and the revising judge, since under the late constitutional amendments, in enlargement of the appellate jurisdiction of this court, the duty is imposed upon us to eliminate the incompetent and weigh the force and effect of what remains, free from objection. The matters disputed in the appeal are comprehended in two inquiries, the solution of which in a great degree determines the result of the action, and they are: *Page 352
1. Was Lockhart the general agent of the intestate, his wife's mother, in the management of the farm and in the disposal and appropriation (450) of the rent products to the reduction of the encumbering debt?
2. Was the delivery of the cotton received from the tenants to the officers of the railroad company at Garysburg for transportation to the consignee at Petersburg, a delivery to the defendant so as to impose on him, and remove from her, the consequences of subsequent loss?
These propositions were ruled by the referee, upon the proofs offered and received, favorably to the defendant, but his deductions of fact and law are reversed upon the hearing before the judge — much of the evidence being rejected and the residue held to be insufficient to warrant the findings. We propose to consider these propositions put into an interrogative form, and the competent and pertinent evidence applicable to them, as a substantial solution of the controversy involved in the defendant's appeal.
The principal exception taken and relied on by the plaintiff is to the legal capacity of the defendant, under the proviso of section 343 of the Code, to testify to transactions which took place between himself and the alleged agent, after the death of both principal and agent, and to the acts and admissions of the latter, while professing to act as such agent and within the scope of the authority conferred. The subject has been discussed and a construction put upon the statute, deciding the very point in the case of Morgan v. Bunting, ante, 66, against the objection, rendering further discussion unnecessary, and we pass to an examination of the proofs of the general agency of Lockhart.
We are clearly of opinion that the referee had sufficient evidence before him to support his conclusion, that Lockhart was not only the intestate's agent in bringing about the agreement for the purchase of the land, but in its general management afterwards, and in collecting, forwarding and disposing of the products of the farm, and we think his Honor erred in overruling the conclusion arrived at and (451) announced in the report. We are content to refer to the more prominent portions of the testimony to sustain the finding of the agency by the referee.
1. The farm belonged to Lockhart and was bought by the defendant under a sale by execution against him. He was active and interested in effecting the re-purchase by the intestate and its retention in the family, and in fixing the terms and conditions of the contract entered into for that purpose, to which he became a subscribing witness. This is an explicit sanction of the principal to the agency assumed and *Page 353 exercised, and a ratification of what had been done in the incipient transactions with the defendant.
2. The intestate, her daughter and Lockhart, the husband, constituted a single family living in the same house, and it does not appear that she ever assumed personal control of the farm or undertook herself to supervise its operations, or to receive and dispose of its rents, a service unsuited to her sex, age and physical condition, or had any other person to act in her behalf.
3. During the long interval extending over several years and up to Lockhart's death, he alone did exercise supervisory authority, professing to derive it from the intestate, gathering and forwarding the crops in her name to the consignee commission house in Petersburg, and her knowledge of what was done and full assent may be reasonably presumed in the absence of evidence to the contrary.
4. The contract of lease entered into in 1875, procured through the active and persistent efforts of Lockhart, and to which he also is a subscribing witness as shown in his correspondence with the defendant, is a direct and positive recognition of the agency in that transaction, and in the instrument itself he is designated as her agent.
5. The presence of Lockhart and his sons at times on the farm, the contract for putting up houses for tenants, the manner of keeping the accounts by the consignees and their acquiescence in Lockhart's control of the funds derived from sales, the making out of the (452) papers showing the deliveries of cotton by the tenants at the railroad depot, these and numerous other concurring facts developed in the voluminous testimony of which it can hardly be supposed the principal was ignorant, strongly support the inference of a continuous authority conferred so to act, or of a ratification which is its equivalent.
II. The next inquiry relates to the legal effect of the deliveries to the transportation agents at Garysburg, in shifting the responsibilities, for a loss arising out of the failure of the commission house to which the cotton was sent, from the intestate to the defendant. The change could not take place and the defendant be charged with the loss, unless control over the cotton forwarded was then transferred to the defendant, so that its future disposal was at his discretion and risk. If control was retained by the agent, it would be unreasonable, merely because of the executory agreement for the lien, that the defendant should suffer by a disaster he was unable to avert, and which did not result from any want of diligence on his part. Until the cotton was put in the custody of the defendant, or some agency of his, and under his control, the perils of loss must follow the property and abide upon the intestate. The evidence shows this to have been the case, that *Page 354 no such transfer had been made up to the bankruptcy of the consignees, and that the only money received from this source was the inconsiderable ratable share paid out of the bankrupt estate upon the proved claim.
These general views dispose of most of the exceptions arising upon this appeal, and it would be superfluous to pursue them in detail.
The exceptions numbered 14, 15 and 16 are to the exclusion of the defendant's explanation of his rendered account; of the headings (453) to his letters; of the correspondence between himself and the agent; of the credits endorsed upon the notes; the testimony (unless obnoxious to the inhibitions of the Code, Sec. 343) is clearly relevant and proper, as otherwise inadvertent errors and mistakes would be beyond the reach of correction, and the truth often distorted or repressed. It remains then to be considered the bearing of the statute upon the defendant's capacity to show by his own testimony, that the endorsement was not a transaction with the deceased, of which she had any personal knowledge, or could speak, if living, in explanation, but his own individual act done when she was absent, and in which she did not herself participate. If these circumstances could be proved by an indifferent witness, it is manifest the mouth of the defendant would not be closed against explanations necessary to a correct understanding of the act itself, and if required, a correction in amount and date.
It is only when the "transaction or communication" is, or appears to have been between the deceased and the living party, that the statute interposes and prohibits the latter from giving in testimony relating to such "transaction or communication," and for the obvious reason that the other side cannot be heard. But the fact to which the testimony is pertinent being shown to have occurred out of the presence of the deceased, and no sense a transaction with her, (and we see no reason why the preliminary matter affecting the competency of a party to testify may not be proved by him as well as by and indifferent witness), the statutory impediment is removed and the objection ceases to have force. The endorsement is but evidence of a partial payment, capable of disproof by proper testimony, and it would seem equally so, when it is shown to the judge, that the deceased was not a party and no transaction was had with her, by the testimony of the living person who alone made it. To hold otherwise is to (454) give to the entry the force of an estoppel excluding all explanatory evidence.
This view of the statute is not at variance with the interpretation put upon it in Woodhouse v. Simmons, 73 N.C. 30, where it is held that an assignee of a note under seal cannot prove that the debt had *Page 355 not been paid, to repel the presumption that it had been, arising out of the lapse of time; for the denial of a transaction presumed in law stands upon the same footing as independent evidence offered of any fact. In the present case the entry is in the defendant's hand-writing, and the proposal is to show when and where it was made, not in the intestate's presence but as a voluntary appropriation of proceeds of rent-cotton with which he is charged in the account rendered by the referee, and to prevent a double charge against him.
It may be suggested in this connexion whether the administratrix in availing herself of this endorsement as evidence in exoneration pro tanto of her intestate, has not thereby herself opened the door to explanatory evidence from the defendant, but it is not necessary to decide the point.Knight v. Killebrew, ante, 400.
We regret that this is not the unanimous opinion of the court and that Mr. Justice RUFFIN dissents as to the last point, who is unable from impaired health to give his reasons in detail therefor.
We do not agree with the court that the defendant ought to be charged with the value of the entire crops raised on the farm during the years 1871 and 1872, but he is liable to account and is properly debited with the $450, due as interest to January 1st, 1872, and with $169.65 collected out of the bankrupt estate. This exception as to those crops is allowed, not only for the reasons already stated, but on the further ground that the forfeiture under the mortgage incurred by the non-payment of the principal moneys falling due on January 1st of the years 1872 and 1873, is waived, and the (455) intestate was compellable to pay only the interest accrued to those dates, and thus the excess beyond interest was surrendered to her.
While if material to the determination of the appeal we might sustain many exceptions to evidence admitted, we think that which is competent to be heard sufficient to warrant the referee's finding of fact and his conclusion of law. The report must therefore be confirmed and the adverse rulings of the court in regard thereto reversed. The judgment must be for redemption upon payment of the intestate's indebtedness for the residue of the purchase money, and if necessary for a sale of the premises for the satisfaction of the debt.
Error. Reversed.
Cited: McKee v. Lineberger, 87 N.C. 186; Lockhart v. Bell, 90 N.C. 504;McRae v. Malloy, 90 N.C. 526; Waddell v. Swann, 91 N.C. 107;Thompson v. Onley, 96 N.C. 13; Hughes v. Boone, 102 N.C. 162; Gupton v.Hawkins, 126 N.C. 83. *Page 356