
    CARR v. SMITH.
    (Filed November 12, 1901.)
    1. WITNESSES — Examinations—Gross-Examination.
    Where a party to an action is examined as to collateral matters, he can not be contradicted.
    ?. PRINCIPAL AND SURETY — Burden of Proof — Negotiable Instruments — Supplemental Surety — Gontraets.
    Where one of two sureties claims to be a supplemental surety by agreement, the burden is upon him to show the agreement.
    3. PRINCIPAL AND SURETY — Go-surelies.
    In an action against an alleged co-surety to recover money paid in settlement of their joint liability, the amount received by the plaintiff as interest on collaterals deposited, should be deducted from the amount paid by plaintiff.
    AotioN by J. S. Carr against J. W. Smith, heard by Judge W. B. Council and a jury, at March Term, 1901, of the S'u-perior Court of JDueham County. Erom a judgment for the' plaintiff, the defendant appealed.
    
      Manmng é Fovshee, for the plaintiff.
    Boone, Bryant & Biggs, for the defendant.
   MONTGOMERY, J.

This action was brought by the plaintiff to recover of the defendant certain amounts of money which he alleged he had paid for the defendant as a co-surety, the Golden Belt Hosiery Company being the principal debtor. The questions raised on the trial were, first, whether or not the defendant Smith was a supplemental surety or endorser to the plaintiff; and, if such, what amount did he owe the plaintiff %

On the cross-examination the defendant Smith,' a witness in his own behalf, was asked by plaintiff’s counsel if he did not tell Carr not to take into the business Carrington; that if they got into trouble he would “lie down” on them, and he answered he did not tell him so. Afterwards, T. M. Gor-man was introduced by the plaintiff and allowed to testify, over the objection of the defendant, that “the defendant had stated to him that Carr wishes to associate Carrington in the business, and that he (Smith) objected to Carrington, saying that he (Smith) was afraid Carrington would lay down on them if they got into any trouble.” The evidence ought not. to have been allowed, because it. was qollateral to the issue. It was not substantive evidence, and did not tend to prove or disprove the main issue as to the defendant’s indebtedness to the plaintiff.

The rule of evidence is thus stated in 1 Greenleaf,sec.4!9: “But it is a well-settled rule that a witness can not be cross-’ examined as to any fact which is collateral and irrelevant go the issue, merely for the purpose of contradicting him by other evidence if he. should deny it, thereby to discredit his testimony. And if a question is put to a witness wbicb is' collateral and irrelevant to the issue, his answer can not be contradicted, but is conclusive against him.” It is said that the rule is relaxed in cases when the cross-examination relates to collateral matters that tend to show the temper, disposition or bias of the witness cross-examined. But in this instance the rule can not be said to be relaxed, for the witness is one of the parties to the suit himself, and might’ naturally be expected to have feeling in the suit and its results, though the question put to him on cross-examination really had no tendency to prove it. The purpose of that part of the cross-examination was to discredit the witness, and the plaintiff was concluded by his answer. Kramer v. Electric Light Co., 95 N. C., 277; State v. Patterson, 74 N. C., 157; Burnett v. Railroad, 120 N. C., 517.

It was admitted by the defendant that he signed and endorsed the obligations of the Golden Belt Hosiery Company with the plaintiff, and that the company made default in the payment of the balances, which the plaintiff paid after the, default, but the defendant denied that he was co-surety upon these obligations with the plaintiff, but that he stood as a supplemental surety or endorser by reason of a special agreement and understanding with the plaintiff that the plaintiff would protect and save him harmless against loss on account of such signing and endorsement. His Honor properly told the jury that the Golden Belt Hosiery Company was the principal debtor, and the defendant, in order to rebut the presumption of suretyship, must prove by the greater weight of the evidence to the jury that he was supplemental surety, that is, that he signed the obligations for the accommodation of the plaintiff, and by agreement with Carr that he would be protected from liability of loss in the matter.

It was admitted that the amount paid by the plaintiff id tbe bant was $685. Tbe defendant plead in tbe way of a counter-claim tbe amount of $420, wbicb, be averred, tbat tbe plaintiff bad received from Manning, Trustee, tbe same being tbe semi-annual interest due on certain collaterals in tbe bands of Manning as a security for tbe debt due by tbe Golden Belt Hosiery Company to tbe Eirst National Bank, and for wbicb tbe plaintiff and defendant were sureties. Tbe plaintiff admitted tbat be bad received tbe $420, but tbat Paul C. Grabam, tbe duly appointed receiver of the Golden Belt Hosiery Company, bad instituted a suit against tbe plaintiff, and Manning, Trustee, wherein tbe $420 was inquired into before tbe referee, Zollieoffer, and tbat a report of tbe referee bad been filed.

On tbe trial, no evidence was introduced in reference to tbe matter, and it seems clear tbat bis Honor should have instructed tbe jury, as requested by tbe defendant, tbat if they believed all tbe evidence on tbat point, tbe $685.22 paid by Carr to tbe bank should be reduced by tbe amount of $420.

It makes no difference whether or not tbe stock in Manning’s bands, as collateral, reached tbe bank after the maturity of tbe semi-annual interest on tbe same fell due. Tbe •plaintiff got tbat amount, as tbe interest, and it was intended for tbe benefit of both tbe plaintiff and tbe defendant when tbe collateral was put up, tbe interest then being not due and the coupons unclipped.

New Trial.  