14 S.E. 49 (N.C. 1891), Hooks v. Houston

Citation:14 S.E. 49, 109 N.C. 623
Opinion Judge:DAVIS, J., (after stating the facts.)
Party Name:HOOKS et al. v. HOUSTON et al.
Attorney:Clarkson & Duls, for appellants. Jones & Tillett, for appellees.
Case Date:December 15, 1891
Court:Supreme Court of North Carolina

Page 49

14 S.E. 49 (N.C. 1891)

109 N.C. 623

HOOKS et al.


HOUSTON et al.

Supreme Court of North Carolina

December 15, 1891

Appeal from superior court, Mecklenburg county; JAMES H. MERRIMON, Judge.

Action by Hooks and Black 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 per cent. 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 was not 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...

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