#### F. C. HUFFMAN et al. v. GAITHER LUMBER COMPANY et al.

(Filed 12 May, 1915.)

1. Bills and Jiotes — Indorsement of Credit — Ambiguity — Open Accounts — Evidence.

In an action upon a note and an open account presenting the question of whether an indorsement on the note, received on “the above” a certain sum, referred to the payment of the open account, with the balance as a credit upon the note, it is Held, that the words of the indorsement, “the above,” were ambiguous of meaning, and permitted evidence, in plaintiff’s behalf, that the open account was attached to the note at the time of the indorsement of credit, and that the indorsement referred to it.

2. Appeal and Error — Evidence—Harmless Error.

Incompetent declarations admitted in evidence as to the correctness of items of an account in controversy are harmless when the items referred to are not disputed.

8. Evidence — Unresponsive Answers — Motions.

Where the witness answers a competent question and testifies further as to incompetent matters, the remedy of the complaining party is to move to strike from the answer the improper evidence..

Appeal by defendant from Harding, J., at December Term, 1914, of Burke.

Action to recover a balance alleged to be due on three notes of $400 each, executed by tbe Gaitber Lumber Company, the payment of which was assumed by the defendant Morrison, president of said company.

*260Tbe questions in controversy between tbe parties were:

1. Whether tbe Gaither Lumber Company was indebted tó tbe plaintiff in tbe sum of $214.12, in addition to tbe three notes.

2. Whether tbe payment of $370.30 on 25 October, 1909, should be credited on one of said notes, or whether a part thereof should be applied in satisfaction of the amount due on the open account and the balance upon the note.

The jury returned the following verdict:

1. Was the entry on the four months note for $400, dated 20 October, 1909, as follows, “Eeeeived on the above $370.30, 25 October, 1909,” made at the same time and as the same transaction as the words appearing thereon, “Less open account, $214.12, being credit of $156.18 on the note”? Answer: “Yes.”

2. Were the words, “Less open account, $214.12, being credit of $156.18,” placed on the note after the words, “Eeeeived on the above $370.30, 25 October, 1909,” as a different transaction? Answer: “No.”

3. In what amount was the defendant Gaither Lumber Company indebted to plaintiff by open account at the time the entry of $370.30 was made on the note? Answer: “$214.12.”

4. Is pláintiff’s cause of action barred by the three years statute of limitations? Answer: “No.”

5. Is the defendant Eugene Morrison indebted to the plaintiff, and if so, in what amount? Answer: “$250, with interest from 10 October, 1912.”

6. Is the -defendant the Gaither Lumber Company indebted to the plaintiff, and if so, in what amount? Answer: “$250.”

There was a judgment in favor of the plaintiff, and the defendant Morrison appealed, assigning the following errors:

1. To the ruling of the court permitting the witness F. O. Huffman to testify that an entry of credit on the back of a $400 nóte in the following words, “Eeeeived on the above $370.30,” meant it was received on the entire account of the Gaither Lumber Company.

2. To the ruling of the court in permitting the witness E. O. Huffman to testify to the declaration of Mr. Gaither that there was no dispute about the amount of lumber shipped by the Wells Lumber Company on the order of the Gaither Lumber Company, and that the amount for the same was honest and just.

3. To the ruling of the court denying defendant’s motion for judgment of nonsuit'at the close of the evidence.

John T. Perhins for plaintiff.

8. J. Ervin for defendant.

Pee Cukxam.

We have carefully examined the record, and find no sufficient reason for disturbing the verdict and judgment of the Superior Court.

*261Tbe words in tbe indorsement of tbe credit on tbe note, “tbe above,” are ambiguous, and it was competent for tbe witness to testify, in explanation thereof, tbat tbe whole account against tbe Gaither Lumber Company, amounting to $1,414.12, was attached to tbe note.

Tbe objection to tbe declarations of Gaither, manager of tbe Gaither Lumber Company, apparently made in 1910, would be tenable, but it appears tbat tbe witness was only asked as to statements made by him with reference to tbe items in tbe account of 26 March, 3 April, and 5 April, 1909, and tbat these items were not in dispute, because they were embraced in two notes of 18 May, 1909, in the amounts of $367.09 and $370.30.

If tbe answer of tbe witness went beyond tbe question it was tbe duty of tbe defendant to move to strike it out.

As tbe execution of tbe notes was not denied, and tbe real dispute was as to tbe application of a payment, tbe motion to nonsuit was properly denied.

No error.