{
  "id": 11272759,
  "name": "W. H. BORDEN v. LOUIS D. GULLY",
  "name_abbreviation": "Borden v. Gully",
  "decision_date": "1885-02",
  "docket_number": "",
  "first_page": "127",
  "last_page": "129",
  "citations": [
    {
      "type": "official",
      "cite": "92 N.C. 127"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [],
  "analysis": {
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    "ocr_confidence": 0.391,
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    "simhash": "1:ca9c757f0317c003",
    "word_count": 742
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  "last_updated": "2023-07-14T20:45:21.083688+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "W. H. BORDEN v. LOUIS D. GULLY."
    ],
    "opinions": [
      {
        "text": "Ashe, J.\nThis action was brought to rescind, for fraud, a contract, whereby the defendant, for a valuable consideration, had sold to the plaintiff a note under seal, executed by one Curtis H. Brogden to one W. R. Brogden, deceased, on tire 14th day of March, A. I). 1864, for the sum of four hundred dollars, or to recover damages on account of said fraud.\nEvidence was given to the jury by the plaintiff, tending to prove said contract; and that the defendant, at the time thereof and just previous thereto, had represented to the plaintiff that said note was not paid, and that there were no set-offs against it \u2022 and that this representation was reasonably relied upon, by the plaintiff, and that it was a motive inducing to the contract on his part.\nThe plaintiff then offered the said Curtis H. Brogden as a witness, to prove that at the time said representation Avas made, and at the time of said contract, said note had been paid, and that the said payment was known to the defendant. The defendant objected, on the ground that said witness was incompetent to-prove these facts, under section 580 of The Code. The court sustained the objection and ruled out the evidence, whereupon the plaintiff excepted, submitted to a judgment of non-suit, and appealed to this court.\nWhether there was error in the ruling of His Honor in excluding the testimony of Curtis H. Brogden, depends upon the construction of section 580 of The Code, which reads: \u201cA party to-an action may be examined as a witness, at the instance of the adverse party, or of any one of several adverse parties, and for that purpose may be compelled in the same manner, and subject to the same rules of examination as any other witness, to testify, either at the trial or conditionally or upon commission: Provided, no person who is or shall be a party to an action founded on a judgment rendered before the first day of August, 1868, or on any bond executed prior to said date, or the assignor, endorser or any person who has at the time of the trial, or ever has had any interest in such judgment or bond, shall be a competent witness on the trial of such action.\u201d\nThe language of the section is too plain to admit of a doubt as to its construction. The restriction in the proviso has reference exclusively to an action upon the class of judgments and bonds mentioned therein.\nThe evident meaning of the proviso is, that no person who is,, or shall be, a party to an action founded on a judgment, or to an action on any bond, or the assignor or endorser of such bond upon which the action is founded, or any person who has, at the time of the trial of such action, or ever has had any interest in such judgment or bond upon which the action is founded, shall be a competent witness on the trial of such action upon the said bond or judgment.\nBut here the action is to rescind a contract for a fraudulent representation as to the bond, and is not brought on the bond, and consequently the witness, Curtis H. Brogden, does not come within the restriction of the proviso, and its provisions have no application to this ease.\nThere is error in the ruling of His Honor in excluding the testimony of Curtis II. Brogden. Therefore the judgment, of the Superior Court is reversed. And this opinion must be certified to the Superior Court of Wayne county, that a venire dc novo may be awarded to the plaintiff.\nError. Reversed.",
        "type": "majority",
        "author": "Ashe, J."
      }
    ],
    "attorneys": [
      "Messrs. Fair cloth & Allen and G. V. Strong, for the plaintiff.",
      "No counsel for the defendant."
    ],
    "corrections": "",
    "head_matter": "W. H. BORDEN v. LOUIS D. GULLY.\nEvidence \u2014 Code, Section 580.\nIn an action to rescind a contract for fraud, which fraud consisted in representing a bond, dated prior to August 1, 186S, to be unpaid, the obligor in such bond is a competent witness to prove that it has been paid. The proviso in section 580 of The Code, making- any person incompetent to testify, who, at any time, has had an interest in such bond, only applies to actions founded on the bond.\nThis was a civil action tried before Gfudger, Judge, at January Term, 1885, of Wayne Superior Court.\nThe plaintiff appealed.\nThe facts are stated in the opinion.\nMessrs. Fair cloth & Allen and G. V. Strong, for the plaintiff.\nNo counsel for the defendant."
  },
  "file_name": "0127-01",
  "first_page_order": 161,
  "last_page_order": 163
}