84 S.E. 393 (N.C. 1915), 138, Rosser v. Bynum & Snipes

Docket Nº:138.
Citation:84 S.E. 393, 168 N.C. 340
Opinion Judge:HOKE, J.
Attorney:A. A. F. Seawell, of Sanford, and W. D. Siler, of Siler City, for appellant. Williams & Williams, of Sanford, for appellee.
Case Date:March 03, 1915
Court:Supreme Court of North Carolina

Page 393

84 S.E. 393 (N.C. 1915)

168 N.C. 340




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...

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