The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1904-10-30
Supreme Court Digests.
(Reported by JOS. L. Seawell)


| Moore V. Guano Co., appellant. from
! Brunswick. Reversed.
The attendance of a witness who IS
neither examined nor rendered 10 the
oDposite party must be taxed against
the party who summoned nm.
! McKcithan V. Telephone Co, appel
liant. From Cumberland. New trial.
One employed to do certain work
for a specified time upon condition OF
his competency, may be discharged by
! the employer at any time before the
| expiration of the time for which he
was employed, if he proves incom-
| Detent or inattentive and he cannot
| recover for the uneXpired time; but
! the burden of showing Incompetence
| or inattention to duty is on the en-
| ployer In such case however the en-
Movers motive in discharging the
employe is immaterial, the only ques-
| ton being whether the discharge was
! justified.
Allen. appellant, V. Tompl<ins Co.
From Franklin. No error.
Where a contract on sale of ma
chinery provided that it should be
first class and work we'll and that
the vendor would replace any of the
machinery which proved defective, the
vendee cannot recover for loss in
CURED while operating the machinery
with a knowledge of it's defects and
before the vendor had cured the
same. The court distinguishes Kester
" Miller 1I9 n. G. ATS and holds that
the rule in Cox V. Long, 60 n. G. Z,
Lewis V. Rountree, rs n. G. 323 and
Gray " Mfg. Co. 129 N. c. 438 does
not apply here except upon the VEN
doris refusal or failure to replace or
cure the defective machinery.
| RO@ePSOn V. Lumber Co. appellant
From Martin. Appeal dismissed.
No appeal lies from a judgment
which does not conclusively determine
the rights of the parties.
| An action for damages alleged to
! have been caused by the defendants
removal of timber from land claimed
| by plaintiffs under a devise to their
mother, was submitted on facts adj
mitted in the pleadings and case
agreed, the question being as to plain
| tiffs' title under the devise. The court
sustained the plaintiffs title and ad-
| judged that they recover such dam
ages as they have sustained by reason
of the acts of the defendant, and de-
PENDANT appealed; Held that the APP
peal was fragmentary.
Carney, appellant, V. w. u. Tel. Co
From Cumberland. No error.
Plaintiff alleged mental anguish fol
nom delivery of the following message
announcing his brothers death, which
was mailed to him from Fayetteville
by defendants agent and received al
plaintiffs home a mile and a hall
from Fayetteville: MIR. Noel Carney
P. Q Idaho, Fayetteville. n. C. The
doctor is dead. Write if you can come
Died at 7:45 today. Mrs. w. E.
| Gainey."
The message was written at Mayo
Florida, where there was no telegraph
office, and sent to Live Oak, % miles
away where it was delivered to defend
ants agent, nothing being said about
charge for special delivery; IT was
transmitted to Fayetteville ana mailed
there by defendants agent and re-
| ceived by plaintiff next day.
| Held that defendants motion to
non-suit was properly allowed-the
| court noting the fact that the double
address to the message indicated that
| tx would have to be transferred to the
f, mails for delivery.
Johnson V. Cameron. appellant. From
Cumberland. Error.
Section 500 of The Code does not
! disqualify a witness who is q party to
| the action or interested therein to tes-
| tify as to a transaction between the
| deceased person and another. The
| test is whether the transaction was be-
/ tween the deceased person and the
witness himself. Ballard V. Ballard.
| 15 n. c. 1911: Loftin V. Loftin. sc N.
G. 80; Mccall V. Wilson. 101 N. C.
| 600.
Upon the question of delivery of an
| anprobated and unregistered deed
found among the grantor's papers af-
ter his death, evidence of the widow
of the grantee that she saw the grant
tor ''hand" the deed to the grantee,
without evidence of any declaration by
the grantor of his purpose, cid not
warrant the trial judge in instructing
an affirmative finding of the issue as
to delivery, especially in view of the
evidence that the grantee was never
in possession. 1t was also error in
such case to reject evidence that the
land called for in the unregistered
deed was disposed of by the grantor in
his viii.
Ramsey Y. Browder, appellant. From
Wake. Error.
Since section STA of The Code an
agreement to accept part of a debt in
discharge of the whole is valid and
enforcible. Boykin V. Buie, 100 n. C.
500; Petit " Woodlief. lis n. C. 100.
Plaintiff and defendants interstate
agreed that one-fourth of debt due
by intestate to plaintiff should be paid
in satisfaction of the entire debt. and
that plaintiff would accept portion OF
the compromise sum in advertising