Atlantic, Tennessee & Ohio Railroad Co. v. Morrison
| Decision Date | 31 January 1880 |
| Citation | 82 N.C. 141 |
| Parties | ATLANTIC, TENNESSEE & OHIO RAILROAD COMPANY v. E. F. MORRISON and others. |
| Court | North Carolina Supreme Court |
OPINION TEXT STARTS HERE
CIVIL ACTION on a Bond tried at Fall Term, 1879, of MECKLENBURG Superior Court, before Buxton, J.
Verdict and judgment for plaintiff, appeal by defendants.
Messrs. Jones & Johnston, for plaintiffs .
Messrs. Wilson & Son, for defendants .
The bond declared on in this action was executed by defendant Morrison with the other defendants his sureties, conditioned for the safe keeping and proper disbursement by said Morrison, as treasurer of the plaintiff company, of the money and effects which might come into his hands belonging to the company, and for the performance of his duty as such treasurer in all other respects. A breach of said bond is alleged, in that, the defendant Morrison received a large sum of money, the amount not known, and contrary to the conditions of his bond he paid out some of it to persons not entitled to receive it, and without authority, appropriated a part to his own use, and has still in his hands a considerable amount not accounted for.
The defendants in their answer, admitting the appointment and acting of Morrison in the position of treasurer and the execution of the bond declared on, deny any breach of the conditions of the bond, and aver full performance of his duty in all things. And they specially set up and rely on, as a bar to any further accountability, a settlement had with a finance committee of the company covering all matters of account of the first fiscal year ending the 31st of May, 1873, and also an account and settlement with one Springs, receiver, on the 21st of April, 1874, in respect of the money and effects of the company which came to the treasurer's hands after the settlement with the finance company, as a bar to any opening of the accounts for that year.
On the opening of the cause for trial the defendants insisted on an issue to be submitted to the jury on the question of breach or no breach, but His Honor was of opinion that inasmuch as the accounting character of defendant as treasurer was admitted in the answer, the plaintiff would have a right to an order of account as of course, if it were not that the defendant had set up and pleaded settlements had with the company in bar of an account, and that therefore the proper preliminary issue was as to the existence and sufficiency of the alleged settlements to bar the further investigation of the accounts of the treasurer. To this refusal of the issue desired on the part of the defendants and the submission of one instead as to the existence and sufficiency of the settlements pleaded in bar, the defendants excepted; and therein it is claimed that His Honor erred.
Under our new system the courts being required to recognize the legal and equitable rights of the parties in the same action, it is proper that the action of the court and the practice should be framed so as to give in effect such remedy and work such determination of the rights involved as were formerly attainable in either a court of law or equity, or both, and therefore His Honor, having regard to the object of the action and the facts stated and put in issue, should have regarded the action, although instituted on the official bond of the treasurer, as substantially a suit for an account. It is alleged in the complaint that Morrison had a large sum to come to and pass from his hands as treasurer, some of it without authority to persons not entitled to receive it, some to his own use, and a large sum still in his hands; and while the defendants in the answer deny all misapplication, yet it is admitted the treasurer had received a large sum of money, and thereby...
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Solon Lodge No. 9 Knights of Pythias Co. v. Ionic Lodge Free Ancient and Accepted Masons No. 72 Co., 5
...rule was continued in effect. Royster v. Wright, supra; Price v. Eccles, 73 N.C. 162; Smith v. Barringer, 74 N.C. 665; Atlantic T. & O. R. Co. v. Morrison, 82 N.C. 141; Cox v. Cox, 84 N.C. 138; Sloan v. McMahon, 85 N.C. 296; Neal v. Becknell, 85 N.C. 299; Commissioners of Wake v. City of Ra......
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Kline Cloak & Suit Co. v. Morris
...122 N.Y.S. 1054; E. Clemens Horst Co. v. Stocker, 119 N.Y.S. 372; Bank of Tarbow v. Fidelity & Dep. Co., 35 S. E. (N. C.) 588; Atlantic v. Morrison, 82 N.C. 141. (3) The established an accord and satisfaction as between plaintiff and defendant Morris. Judgment should have been in favor of d......
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Grant v. Hughes
...been evidence of satisfaction, but not conclusive. It was held not to be even evidence of a final settlement, in the case of Railroad Co. v. Morrison, 82 N. C. 141; and, when fraud or mistake is alleged, it is never conclusive. Costin v. Baxter, 6 Ired. Eq. 197; James v. Matthews, 5 Ired. E......
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Grant v. Hughes
...been evidence of satisfaction, but not conclusive. It was held not to be even evidence of a final settlement, in the case of Railroad Co. v. Morrison, 82 N.C. 141; and, fraud or mistake is alleged, it is never conclusive. Costin v. Baxter, 6 Ired. Eq. 197; James v. Matthews, 5 Ired. Eq. 28;......