Alice v. March

• Citation: 79 N.C. 19
• Court: North Carolina Supreme Court
• Decision Date: 30 June 1878
• Parties: ALICE V. MARCH and others v. JOHN H. VERBLE, Adm'r.

79 N.C. 19

ALICE V. MARCH and others

v.JOHN H. VERBLE, Adm'r.

Supreme Court of North Carolina.

June Term, 1878.

OPINION TEXT STARTS HERE

CIVIL ACTION tried at Spring Jerm, 1878, of ROWAN Superior Court, before Buxton, J.

The plaintiffs alleged that the defendant was appointed administrator of Daniel Shaver prior to July, 1869, and that his intestate was indebted to W. B. March (who was subsequently made a party plaintiff in this action) for goods sold and delivered, and for money loaned, according to an account stated; that the interest of said March was assigned to plaintiffs before the commencement of this action, and that they are the real parties in interest. The defendant in his answer alleged that there were debts against his intestate of a higher dignity than the plaintiffs', and that he had fully administered the estate except a small amount of proceeds of sale of real estate which was subject to the payment of the same.

It was in evidence for the plaintiff that W. B. March had supplied said intestate with goods and chattels to a large amount, and had loaned him a considerable sum of money; and among the chattels sold since the war was a bull, and said March was allowed to testify, after objection, that he did not own but one bull since that time, and also to give his opinion that the value of the bull was fifty dollars, another witness having testified that he was worth from thirty to forty dollars. Defendant excepted.

The jury found the following issues: Was Daniel Shaver, intestate of defendant, indebted to W. B. March, and if so, in what amount? Answer, yes, $1,832.50. Has any part of same been paid to March or the plaintiff? Answer, no. And in addition to these issues a third issue was suggested at the opening of the case, and accepted, as follows: Did W. B. March assign said indebtedness to the plaintiffs before the commencement of this action? And on the examination of March touching this issue, he testified that he had assigned his interest to the plaintiffs in writing, and upon the defendant's request His Honor excluded the evidence; thereupon the counsel for the original plaintiffs moved to make March a party plaintiff, which was allowed, and then asked leave to withdraw the third issue as being immaterial, which was also allowed. Defendant excepted. There was much other evidence for plaintiffs. The defendant offered no testimony, but called the attention of the Court to the evidence of one of the plaintiffs' witnesses in reference to a conversation between March and the intestate of defendant in the spring of 1868, and asked certain instructions thereon, which with the refusal of His Honor are set out in the opinion. Verdict and judgment for plaintiff. Appeal by defendant.

Mr. W. H. Bailey, for plaintiffs .

Mr. Kerr Craige, for defendant .

SMITH, C. J.

This action is prosecuted to recover for goods sold and money loaned to the defendant's intestate, and for money received by him to the use of W. B. March. The complaint alleges that prior to the suit, the creditor W. B. March assigned his claim to the plaintiffs, and this is denied in the answer.

Issues were made up from the pleadings and submitted to the jury, and among them one as to the alleged assignment. On the trial the plaintiffs failed to prove the affirmative, and thereupon obtained leave of the Court to amend by making March a co-plaintiff, he assenting thereto, and the issue was withdrawn. The jury found to be due from the defendant's intestate the sum of one thousand, eight hundred and thirty-two dollars and fifty cents.

The complaint being otherwise unamended, the effect of the introduction of the new plaintiff into the pleadings, is to make the allegation of the assignment as well that of the assignor, as of the other plaintiffs, and to conclude both as to any future demand on the intestate's estate, and indeed to make the withdrawn issue wholly immaterial to the defendant, unless he should have some set off or equity, which is not suggested, to be affected thereby. Indeed the assignment not being proved as to him, he can avail himself of any defences personal to the assignor, as if the assignor was sole owner of the debt, and the only plaintiff. The form of the judgment must be modified so that the assignor recovers the money due to the use of his co-plaintiff.

We deem it proper to suggest that an amendment, so radical in its effects as to...