Lenoir County NcArchives Court.....J. J. Herring, Gregory, Galloway & Co. V. 1875
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Peggy Payne paynep@comcast.net January 13, 2012, 2:25 pm

Source: N C Reports
Written: 1875

GREGORY, GALLOWAY & CO. v. J. J. HERRING.

In an action brought against A to recover the value of a horse sold by the 
plaintiff to B. the son of A, it was in evidence that the plaintiff had sold 
the horse to B, who lived upon and cultivated a portion of the defendant's 
land, and that on one occasion defendant was seen riding with B in a buggy 
drawn by the horse sold by the plaintiff to B.  There was no evidence as to B 
being under full age, nor connecting A with the transaction.  Upon a demurrer 
to the evidence:  It was held, that plaintiff was not entitled to recover.

    CIVIL ACTION, originally commenced in a Magistrate's Court and carried 
upon appeal to the Superior Court of LENOIR county, where it was tried before 
Seymour, J., and a jury, at Spring Term, 1875.

    The action was brought by the plaintiffs to recover one hundred and thirty 
dollars, a balance due on the price of a horse sold by them to one Joshua 
Herring, a son of the defendant.

    A. J. Galloway, one of the plaintiffs, testified: I sold a horse, the 
property of the plaintiffs, to Joshua Herring in the fall of 1873.  He wanted 
time to pay for the horse.  Joshua is a son of the defendant.  The price of 
the horse was $135.  Joshua paid $5 on the day of the sale.  I did not know he 
was under twenty one years of age.  I did not know he was acting as his 
father's agent.  I charged the price of the horse to Joshua.  He was to pay in 
cotton in two weeks.  In about two weeks he brought cotton to town, but sold 
it to other parties, and did not pay for the horse.

    Council S. Wooten, a witness for the plaintiffs, testified:  I live near 
the defendant.  Joshua was living with the defendant and has carried on a farm 
on his father's land.  I went out with Joshua at his request to look at his 
crop.  He had nothing separate from his father.  He worked the same land.  I 
saw Joshua driving the horse.  He called a part of the crop his; that was on 
his father's land.

    J. H. Jolly, a witness for the plaintiffs, testified, that defendant had 
said on two or three occasions that the beast was a likely beast and well 
worth the money; his son Joshua had promised to pay for it, and if it had 
lived it would have been paid for.  Defendant said Joshua was not doing much 
for his father.

    John Parker testified, that Joshua employed him on defendant's plantation 
in the spring of 1873, to ditch, and the old man, the defendant, gave 
directions as to how the ditch should be cut.

    J. H. Hardy testified:  He sold timber in the fall of 1873 to Joshua.  
After the purchase the defendant came with Joshua for the timber, and said 
Joshua had made a good bargain.  Joshua said he was buying the timber for 
tenant houses.   Defendant's team hauled the timber.

    J. S. Wooten testified:  I saw the defendant and his son Joshua driving 
the horse in controversy in a buggy at La Grange, not long after the sale of 
the horse by the plaintiffs.  Joshua has lived with his father all the while.  
I saw Joshua sell corn at La Grange in the winter of 1874.  Joshua worked on 
defendant's plantation for some years past, until 1875.  I have heard Joshua 
making contracts with hands to work on the defendant's plantation.  I think I 
saw Joshua selling seed cotton in the winter of 1873.

    The defendant demurred to the evidence and insisted that there was no 
evidence of a previous authorization or a subsequent ratification of the 
purchase by Joshua as the agent of defendant.

    His Honor instructed the jury that it was for them to say from the 
evidence whether or not the defendant authorized or ratified the sale.

    The jury rendered a verdict in favor of the plaintiffs, and his Honor gave 
judgment accordingly.  From this judgment the defendant appealed.

Smith & Strong, for the appellant.
No counsel in this Court contra.

NC Supreme Court Justice SETTLE, J. - This action was brought to recover the 
price of a horse sold by the plaintiffs to a son of the defendant. The 
plaintiffs introduced several witnesses who testified to the many facts set 
forth in the record, and the defendant demarred to the evidence.

    We are, therefore, called upon to decide whether or not there was any 
evidence which tended to prove that the defendant authorized his son to 
purchase the horse, or that he afterwards ratified the same.

    Several witnesses proved that the son lived with the father, but no one 
testified positively that the son was under twenty-one years of age.  The only 
allusion to his age is made by Galloway, one of the plaintiffs, who says he 
did not know that the son was under twenty one years of age and did not know 
that he was acting as his father's agent; that he charged the price of the 
horse to the son, who was to pay it in cotton in two weeks.  For aught that 
appears upon the record, the son was of full age.  But assuming that he was 
not; there is nothing in the evidence which connects the defendant with the 
transaction in the remotest degree, either before or after the sale of the 
horse to the son.

    We will not repeat the evidence, as it will be set forth in full by the 
reporter.  The strongest circumstance proven against the defendant was that he 
was seen, on one occasion, riding with his son while driving the horse, but 
surely that cannot be construed into a ratification of the purchase.

    If fathers are to be held responsible for the acts of their sons who pass 
for adults, on such evidence as is here presented, they will have but little 
protection against the whims of young America and the chicanery of old 
speculators.  "Whether there be any evidence is for the Judge; whether 
sufficient evidence is for the jury.

    We are of opinion that there was no evidence in this case, not even a 
scintilla, which tended to establish the responsibility of the defendant.  The 
authorities on this subject have been recently collected and discussed in the 
opinion of the Court,  and the dissenting opinion of Justice Bynum in the case 
of Witkowsky & Rintels v. Wasson, 71 N. C. Rep., 459.  A further discussion of 
it is unnecessary.

     Let the judgment of the Superior Court be reversed and judgment entered 
here for the defendant.

PER CURIAM.							      
Judgment reversed.

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