#### LEDFORD v. EMERSON.

(Filed May 25, 1906).

Fvidence — Failure of Party to Testify ■— Comment of Counsel.

1. In an action to recover plaintiff’s share of the profits arising from the sale of certain options, where the plaintiff testified to the amount received by the defendant, gave the amount of expenses and amounts previously paid himself, and stated the balance due him from the defendant by reason of the transaction and gave data upon which the jury could come to their own conclusion as to the amount, an exception that there was no evidence offered from which any profits could be declared, cannot be sustained.

2. Where, in a civil suit, the principal facts were peculiarly within the knowledge of the parties and the plaintiff having testified, the failure of the defendant to testify was a legitimate subject of comment before the jury, subject to the legal control of the presiding judge and the fact that the defendant was voluntarily absent in violation of his bail bond, does not alter the case to his advantage.

ActioN by J. P. Ledford against A. S. Emerson, heard by Judge Walter II. Neal, at the November Term, 1905, of the Superior Court of ChekoKee. From a judgment for the plaintiff, the defendant appealed.

*597 Busbee & Busbee for the plaintiff.

Dillard & Bell and Ben Posey for the defendant.

Per Curiam:

Tbis case bas been twice before tbe court recently on preliminary questions, 138 N. C., 502, and 140 N. C., 288, and is now before us on appeal from a final judgment obtained by tbe plaintiff against tbe defendant.

Tbe plaintiff alleged and offered evidence tending to sbow that in tbe year 1900 tbe plaintiff bad procured an option of 4,000 acres of land in Union and Towns Counties, Georgia, at tbe price of $100 per acre, afterwards increased to 6,500 acres at said price; that tbe defendant, having obtained information of tbis fact in October, 1900, informed tbe plaintiff that be could find a purchaser for tbe option if the plantiff would give him an interest in tbe margin or profits of any sale be could make, and tbe plaintiff and defendant then contracted and agreed that if tbe defendant could find a purchaser, they would divide tbe profits equally, tbe defendant paying expenses; that tbe defendant afterwards sold tbe option for $10,000, receiving tbe money therefor, and tbe plaintiff’s share of tbe proceeds, less expenses and amounts already paid tbe plaintiff, amounted to $4,400, with interest from April 1, 1903. Tbe issue sübmitted and responded to by tbe jury was as follows: “In what amount, if any, is tbe defendant indebted to tbe plaintiff by reason of tbe matters alleged in tbe complaint? $4,225 and interest thereon from May 1, 1903.”

There were two exceptions urged upon our attention on tbe argument: 1. That there was no evidence offered from which any profits could be declared. 2. That counsel was allowed to comment on tbe fact that tbe defendant did not testify at tbe trial. Neither, we think, can be sustained.

Tbe plaintiff testified to the amount received by tbe defendant, gave tbe amount of expenses and amounts previously paid himself, and stated that tbe balance now due him *598from the defendant by reason of the transaction was $4,400, with interest from April, 1903. Tbe witness not only made this definite statement, but gave the data upon which the jury could come to their own conclusion as to the amount, which they did, as shown by the verdict.

The second objection, we think, is equally untenable. The principal facts attending the transaction were peculiarly within the knowledge of the plaintiff and defendant, and this being a civil suit and the plaintiff having given his version favoring his claim, the failure of the defendant to testify was a legitimate subject of comment before the jury, subject to the legal discretion and control of the presiding judge. Goodman v. Sapp, 102 N. C., 477; Hudson v. Jordan, 108 N. C., 10. Nor do we think the fact that the defendant was absent in Europe alters the case to his advantage. So far as appears he was voluntarily absent.

The testimony of the plaintiff tended to fix the defendant with fraud in the matter. The defendant had been arrested on these allegations and was then absenting himself in violation of his bail bond made by order in the cause. These allegations of fraud and evidence concerning them had therefore been in existence and placing long enough to inform the defendant that these charges were made against him and would likely be testified to at the trial, and his voluntary absence and failure to testify or have his deposition taken, were therefore a fair subject of comment.

There is no error and the judgment below is

Affirmed.