Rosser v. Bynum & Snipes

• Decision Date: 03 March 1915
• Docket Number: 138.
• Citation: 84 S.E. 393,168 N.C. 340
• Parties: ROSSER v. BYNUM & SNIPES.
• Court: North Carolina Supreme Court

84 S.E. 393

168 N.C. 340

ROSSER v. BYNUM & SNIPES.

No. 138.

Supreme Court of North Carolina

March 3, 1915

Appeal from Superior Court, Lee County; Peebles, Judge.

Action by one Rosser against Bynum & Snipes. From a judgment for defendant, plaintiff appeals. Reversed, and new trial granted.

Conflicting testimony of the drawer and payee of a check as to the existence of words thereon must be submitted without comment as to the rule of negative and positive testimony.

Plaintiff offered evidence tending to show that, during 1911, beginning in May, he sold and delivered to defendants an amount of lumber at a stipulated price, and the balance due thereon was $107.01. Defendant pleaded payment, and, in support of the plea, there was evidence tending to show that the lumber was all delivered prior to August 31, 1911, and defendant put in evidence a check of defendant's on Bank & Trust Company in plaintiff's favor, of date August 31st, for $392.73. On face of said check were the words "For lbr. to date"; offered testimony tending to show that said check had been paid plaintiff and that the word "lbr." meant lumber. In reference to this check and the entry thereon, the court held that, if the jury should find that "lbr." meant lumber and was on the check when plaintiff took it, that closed every particular of indebtedness for lumber up to that date and plaintiff could not recover unless he showed that, after that time, more lumber was delivered. Plaintiff excepted.

There was evidence of plaintiff to the effect that there was indebtedness for lumber and a balance still due thereon over and above the amount covered by defendant's checks. Plaintiff testified further that the word "lbr." was not on the check of August 31st, when the same was drawn or taken by him. Defendant F. R. Snipes testified that said words were on the check when same was taken by plaintiff, and defendant was allowed. over plaintiff's objections, to introduce a number of other checks, drawn by defendant showing lumber entries thereon and tending to show a custom of defendant to make entries of that kind on checks given in the course of its business and of this transaction. Plaintiff excepted.

In reference to the word "lbr.," appearing on the check, and the testimony in reference thereto, the court concerning other things charged the jury as follows:

"Now the defendant pleaded payment, and he says he paid this check. The burden upon that issue is upon the defendant. He must satisfy you by the greater weight of evidence that this check was given for that lumber, and that those words 'lbr. to date' mean for lumber, and that those words were written on there at the time when the check was accepted by the plaintiff. The plaintiff swears that those words were not on there. The law says that when one man swears to a negative fact and another swears to a positive fact, if they are both men of equal credibility, the jury ought to give more weight to a man who swears to a positive fact than a man who swears to a negative fact, for instance, if a witness were to go on the stand and say that he was in the courthouse yesterday, and Sheriff Petty was in the courthouse, and another should go on the stand and swear that he was in the courthouse yesterday, and Sheriff Petty was not in there, the laws says, both sides being of equal credibility, you ought to give more faith to the one who swore that Sheriff Petty was in the courthouse than the one who swore that he was not, because he might have been there and the man not have seen him or not had his attention called to it, and he might have been honestly mistaken, whereas a man who swears that he was in there could not be mistaken. Petty was either here, or else that man told a willful falsehood. Now, here Rosser swore that those words were not on there when he accepted the check. Snipes swears that they were on there. Here is one man swearing to a negative and one to a positive fact, and it is for you to say which one is right and which one is wrong."

Plaintiff excepted.

There was verdict for defendant, judgment, and plaintiff appealed formally assigning for error the exceptions above noted.

A. A. F. Seawell, of Sanford, and W. D. Siler, of Siler City, for appellant.

Williams & Williams, of Sanford, for appellee.

HOKE J.

We do not concur in the view of the trial judge that, if the words "lbr. to date" were on the check of August 31st when plaintiff took it, they would necessarily conclude as to every particular of indebtedness for lumber up to that date.

It is well recognized that when, in case of a disputed account between parties, a check is given and received clearly purporting to be in full, or when such a check is given and from the facts and attendant circumstances, it clearly appears that it is to be received in full of all indebtedness of a given character or all indebtedness to date, the courts will allow to such a payment the effect contended for. The position is very well stated in Aydlett v. Brown, 153 N.C. 334, 69 S.E. 243, as follows, ...