Hooks v. Houston

• Decision Date: 15 December 1891
• Citation: 109 N.C. 623,14 S.E. 49
• Parties: Hooks et al. v. Houston et al.
• Court: North Carolina Supreme Court

14 S.E. 49

(109 N.C. 623)

Hooks et al.

v.Houston et al.

Supreme Court of North Carolina.

Dec. 15, 1891.

Jurisdiction of Justice of the Peace—Patment of Note—Evidence.

1. In an action on a note executed by defendant to one K., wbo transferred it to plaintiffs, defendant pleaded payment, and introduced evidence that he and K., after the execution of the note, entered into partnership to gin cotton; that, at the dissolution of this partnership, he told K. to apply his share of the proceeds of the cotton left at the gin to the payment of the note; that K. sold the cotton, and applied the proceeds to that end. K., being called to testify, denied this, and asserted that defendant had told him to sell the cotton, and apply the proceeds to the payment of the firm's debts, which he did. He further testified that he went to defendant tor a settlement, but never could get it. Held, that the settlement of the partnership affairs was not involved, and the-action was therefore within the jurisdiction of a justice of the peace.

2. In such case the testimony of the magistrate before whom the case was tried, that, on the trial before him, defendant and K. produced itemized statements of their respective claims, and that witness made a calculation, and found, without considering the note sued, that defendant owed K. 12 cents, was properly excluded.

3. Where defendant in such case introduces a witness who testifies that defendant stated to her, when K. was not present, that the two bales of cotton were left at the gin to pay the note, such testimony is competent when admitted, not as original substantive evidence, but only as corroborative of another witness.

Appeal from superior court, Mecklenburg county; James H. Meruimon, Judge.

Action by Hooks and IMack against James A.Houston and others on a promissory note. Judgment for defendants. Plaintiffs appeal. Affirmed.

The other facts fully appear in the following statement by Davis, J.:

The plaintiffs seek to recover the sum of $42.50, with interest at 8 percent, from March 30, 1880, alleged to be due by note of defendant made payable on that day to H. A. Klutts, and indorsed to plaintiffs for value after maturity. The execution of the note wasnot denied, but the defendant relied upon the plea of payment, and, as a witness in his own behalf, testified in substance that he paid the note in cotton at Klutts' gin, which was sold by Klutts and applied to the payment of the note. Upon cross-examination he testified in substance that he and Klutts entered into partnership to gin cotton, in which he was to have half; that by agreement one Tharrell was to take his place in the partnership, and he was to "come out;" that up to this time they had sold three bales of cotton, and two remained, one-half the proceeds of which was his. He had testified that the cotton weighed about 900 pounds, and brought about 10 1/2 cents per pound. Counsel for plaintiffs moved the court to strike out the defendant's plea of payment, and render judgment for the plaintiff, " upon the ground that the justice's court had no jurisdiction to settle partnership matters." Motion refused, and plaintiff excepted. There was further testimony by defendant on cross-examination in regard to the sale of cotton, and money collected for bagging and ties, to the amount of $60 to $75, of which the defendant used only $1; and the defendant testified that Klutts never asked him to pay the note; that he was notified by the plaintiffs in 1887 that they had the note, and that he was solvent at all times. The plaintiff renewed their motion, which was again refused, and they excepted. Plaintiffs then introduced Klutts as a witness, who testified in substance that he and defendant were partners to gin cotton; that he saw Tharrell, and proposed "to sell out to him, " when Tharrell told him he had "bought out Houston;" that Houston sold out without his knowledge; that he went to Houston for a settlement, but could not get it; that there were two bales of cotton left at the gin, and Houston told him to sell it, and pay the creditors, which he did; that nothing was said about applying Houston's interest in the cotton to the payment of the note; "all went to the use of the firm; total amount of the note is now due, and nothing has been paid." There was further testimony by this witness tending to show that thepartnership had not been settled, and that the defendant sold out his interest to Tharrell for $10, without the knowledge of Klutts, and that nothing was said about applying the cotton to the payment of the debt sued on. T. J. Renfrow, the magistrate before whom the case was tried, testified as a witness for plaintiffs that both Klutts and Houston gave him statements, but he did not keep them, and does not remember what the items were. Houston claimed that he had left cotton to pay the note in question. Plaintiffs' counsel then offered to prove by the witness that, on the trial before him, Klutts and Houston both produced itemized statements of their respective claims in regard to...