Armstrong v. Lonon
| Decision Date | 16 December 1908 |
| Citation | 63 S.E. 101,149 N.C. 434 |
| Court | North Carolina Supreme Court |
| Parties | ARMSTRONG, CATER & CO. v. LONON. |
Accobd and Satisfaction (§ 27*)—Check in Full Payment — Acceptance — Question for Jury.
In an action for the balance due on a verified account, there being some misunderstanding between the parties as to the amount of one item, plaintiffs' receipt of a check from defendant, which stated that it was for payment in full to date, their indorsement thereof, and retention of the money was sufficient to take to the jury whether the check was received in full payment of defendant's indebtedness.
[Ed. Note.—For other cases, see Accord and Satisfaction, Cent. Dig. § 97; Dec. Dig. § 27.*]
Appeal from Superior Court, McDowell County; Ferguson, Judge.
Action by Armstrong, Cater & Co. against D. N. Lonon. From a judgment for defendant, plaintiffs appealed. Affirmed.
The action is brought to recover a balance due on a verified account of $49.68. The defendant pleaded a payment of $29.18 on July 6, 1906, by check, as follows: The check was indorsed to plaintiffs and duly paid. The court submitted this issue to the jury: From the judgment rendered, plaintiffs appealed.
Pless & Winborne, for appellants.
J. L. C. Bird, for appellee.
We have examined the record and exceptions and the judge's charge in this case, and find no reversible error. There is only one assignment of error relating to the testimony taken or rejected, and that is without merit. The other assignments of error relate to prayers for instruction as to the charge of the court. There is evidence upon the part of plaintiffs, in the deposition of Cater, as well as the evidence offered by defendant, that there was a dispute, or at least some misunderstanding in regard to one item in the account, which amounted to the sum now claimed. The check indicated on its face that it was sent in full payment to date thereof, and, while this is not under the circumstances of this case conclusive, yet the receipt of it by the plaintiffs, their indorsement of it, and retention of the money is sufficient evidence to go to the jury that it was sent and received as a full payment and discharge of all indebtedness of defendant to plaintiffs, and so...
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...or sent cannot accept and use it and afterwards repudiate the condition. Kerr v. Sanders, 122 N.C. 635, 29 S.E. 943; Armstrong v. Lonon, 149 N.C. 434, 63 S.E. 101; Aydlett v. Brown, 153 N.C. 336, 69 S.E. 243, cases cited therein. But the use of the check is only one of the circumstances ten......
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