Opinion
(June Term, 1852.)
It seems that, although a proposition to compromise, rejected by the other party, could not be heard, yet admissions of facts, made by the defendant in the conversation with the party proposing the compromise, may be received. But there can be no doubt that such admissions are competent evidence when made to one who informs the defendant that he has no authority to compromise.
APPEAL from Caldwell, J., at Spring Term, 1852, of GRANVILLE.
E. G. Reade for plaintiff.
J. H. Bryan for defendant.
Action for slanderous words spoken of the plaintiff, imputing to him the crime of stealing a hog belonging to the defendant, tried on the general issue. On the part of the plaintiff a witness deposed that the defendant said to him the plaintiff had cut the hamstrings of several of his hogs, and that one of them was missing; that he had watched for the buzzards and could see none, and that he believed the plaintiff had killed and eaten the missing hog, and he intended to charge him with it as stolen property, and put the law in force against him (330) to the full extent, as he, the plaintiff, was as big a rogue as any negro in the county. The witness said, on cross-examination, that in speaking of putting the law in force he understood the defendant to mean the fence law. On the part of the plaintiff another witness deposed that the defendant, about the same time, told the witness that the plaintiff had cut the hamstrings of his (the defendant's) hogs, and had done worse than that, for he had cut a piece out of the ham of one of them, and he believed the plaintiff had killed and eaten it. On the part of the defendant it was stated in defense that he did not mean to charge the plaintiff with a felony, but meant only that he would proceed against him under the statute for keeping an insufficient fence and worrying his hogs that got into plaintiff's field; and in support of his defense the defendant gave in evidence a warrant which, a few days after the speaking of the words, he took out against the plaintiff under the fence law. Plaintiff then offered to prove by another witness that after this suit was brought the defendant stated to the witness that he had charged the plaintiff with stealing his hog, but that he did so in a passion, and was sorry for it. This was objected to by defendant, on the ground that the admission was made pending a treaty of compromise between the parties. On that point the witness deposed that he had been plaintiff's surety for the prosecution of this suit, and that defendant, under the impression, as the witness thought, that he was the agent of plaintiff, applied to the witness to have the suit compromised, and that the witness immediately informed the defendant that he was not plaintiff's agent. But the witness further stated that he expressed the opinion to the defendant that it would be settled if he would reinstate the plaintiff (331) by paying the costs he had then incurred and would say, in the presence of some of the neighbors, that he was sorry for what he had said; and that thereupon the defendant stated to the witness that he was willing to do so, for that in a passion he had charged the plaintiff with stealing a hog, and was sorry for what he had said; that the witness made this known to the plaintiff, and he assented to compromise on those terms, but the defendant afterwards refused.
The court was thereupon of opinion that, although a proposition to compromise, rejected by the other party, could not be heard, yet admissions of facts made by the defendant in the conversation with the witness were competent evidence, and the witness was allowed to state to the jury that the defendant told him that in a passion he had charged the plaintiff with stealing his hog, and was sorry for it. The court instructed the jury that if they believed the defendant charged the plaintiff with stealing his hog, the plaintiff was entitled to recover, whether the charge was made in express terms or by implication or innuendo.
After a verdict and judgment for the plaintiff, the defendant appealed.
Although the cases upon the question of evidence are not entirely in unison, yet in some of them the distinction mentioned by his Honor is taken, and, perhaps, enough may be found in the books to establish the rule to be as laid down on the trial, if this had been a distinct admission of fact made during a treaty of compromise between the parties or their agents. But the decision of that point is at present unnecessary, because it does not seem to the Court that this can be fairly treated as an admission made upon such an occasion; for the witness said expressly that he was not plaintiff's agent, and therefore he had no authority to treat for a compromise, and that he distinctly told (332) the defendant so at the outset. It was after that the defendant made the admission as to the nature of the charge he had uttered against the plaintiff; and there seems to be no ground on which it could be distinguished from a similar declaration to any other person or on any other occasion. The witness was not even made by the defendant his agent to make a compromise with the plaintiff. He might, indeed, have expected that the witness, from his good will for the parties and his relation to them, would communicate to the plaintiff what had passed, and thus pave the way for entering upon a treaty of compromise; but he certainly did not consider that the witness had authority of any sort in the matter, for, without hesitation, he retracted everything when informed that the plaintiff was willing to make a compromise — not feeling bound by anything he had said to the witness or the witness had said to the plaintiff. The case, then, seems to be simply this: The defendant, on being sued for slander, informed his friend what slander he had spoken of the plaintiff, and the circumstances under which he had spoken the words, and that he then regretted it, and was anxious to have it settled. There was no treaty then pending, or, indeed, any authority to the witness to open one; and therefore the rule as to admissions during a compromise does not apply; but the defendant's declarations are admissions with liberty to the jury to allow them such weight as to them it might seem they ought to carry from the circumstances under which they were made.
There is no error in the instructions to the jury. His Honor did not use the term innuendo in its technical sense in pleading, but in the popular one of artful hint or insinuation. Indeed, the use of the word was altogether superfluous, as the charge was direct, if the witnesses were believed at all.
PER CURIAM. No error.
Cited: Smith v. Love, 64 N.C. 440; Baynes v. Harris, 160 N.C. 308.
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