Adams v. Utley

• Decision Date: 31 October 1882
• Citation: 87 N.C. 356
• Parties: NATHAN ADAMS v. WILLIAM UTLEY.
• Court: North Carolina Supreme Court

87 N.C. 356

NATHAN ADAMS

v.WILLIAM UTLEY.

Supreme Court of North Carolina.

October Term, 1882.

CIVIL ACTION to recover balance due upon a bond, tried at Spring Term, 1882, of WAKE Superior Court, before Bennett, J.

Appeal by plaintiff.

Mesrs. Fowle & Snow, for plaintiff .

Messrs. Lewis & Son, for defendant .

RUFFIN, J.

Of the several exceptions taken, it is necessary that we should notice but one, the others involving no legal principles, and being such as are not likely to occur upon another trial of the cause.

The plaintiff commenced his action on the 20th day of June, 1878, seeking to recover a balance alleged to be due on a bond, originally for $391.00, executed the 23rd day of October, 1867.

In his complaint, after setting forth in the first article the execution of the instrument by the defendant, he alleges in the second article, “that no part of the debt had been paid except $91.00 on the 2nd of November, 1867; $9.60 on the 24th of August, 1870; and $5.00 on the 5th of June, 1876.”

In an answer filed at February term, 1879, the defendant admits the execution of the bond, though he says, it was not given to plaintiff, but to plaintiff's wife; and in the 2nd article he avers “that item two of the complaint is not true, for that it does not state all the payments made on the bond; that about 1867, he paid $100 thereon, and soon thereafter $70.30, and afterwards and that at various times in small amounts he has paid on said bond about seventy-five dollars.”

Afterwards the parties were allowed by the court to amend their pleadings, and in answer to a new complaint, substantially the same with the former, the defendant denies the allegations thereof seriatim, and as a further defence alleges that the bond sued on was executed more than ten years before the commencement of the action, and he therefore pleads payment thereof, and the statute of presumptions.

On the trial the plaintiff offered evidence for the purpose of showing that the credit dated the 24th of August, 1870, was in fact made at that time, and upon an intimation of the court that it was insufficient to rebut the plea of payment, the plaintiff's counsel then offered the original answer as containing the admission of defendant with reference to the credits upon the bond set out in the complaint--that answer having been read with the amended answer, as a part of the pleadings at the outset of the trial. “But the court, (we here quote verbatim from the case) being of opinion that the denials in the amended answer covered all allegations of payment made in the complaint, ruled against the plaintiff, to which ruling the plaintiff excepted.”

We find it difficult to apprehend the exact purport of His Honor's ruling as thus given in the statement of the case. To know whether he rejected absolutely, as being incompetent, the evidence of the defendant's admissions contained in the original answer, or whether admitting it to be competent, he adjudged it to be, in law, insufficient to rebut the presumption of payment arising from the lapse of time. But taking it to be either way, we hold it to be erroneous.

The fact that the evidence of the admissions was contained in an answer constituting a part of the pleadings in the cause, cannot, as we conceive, detract from its competency. A man's own admissions touching the subject of a controversy to which he is a party, are always admissible against him, and much...