Bledsoe v. Nixon

• Decision Date: 31 January 1873
• Court: North Carolina Supreme Court
• Parties: MOSES A. BLEDSOE v. ELIZABETH A. NIXON and others.

68 N.C. 521

MOSES A. BLEDSOE

v.ELIZABETH A. NIXON and others.

Supreme Court of North Carolina.

January Term, 1873.

A surety who pays the bond of his principal thereby discharges it; and his right of action against the principal for the recovery of the amount of such bond being upon a simple contract, is barred after three years by the statute of limitations.

A, B and C enter into a copartnership with a capital of $8,400. A sells out to B, who, after reciting that the concern had incurred a debt for capital stock for which A, B and C “were equally liable,” covenanted to “assume the payment of all liabilities incurred by the said A on account of the aforesaid business,” and B further agreed “to pay off and discharge all the liabilities incurred by said A on account of the aforesaid business, so that the said A shall come to no loss or damage:” Held, that B was responsible to A for his share of the capital stock, and that the share of each was a charge against the copartnership business.

CIVIL ACTION, tried before Watts, J., at the January Term, 1873, of WAKE Superior Court.

The suit is brought by plaintiff against the defendants, who are the legal representatives of Jere. Nixon, deceased, and for the adjustment of an account and for a settlement of the same, and also for the performance of sundry covenants contained in articles of agreement entered into between the original parties, some of which were as far back as 1853. The suit was referred, and upon the coming in of the report of the referee, both parties excepted to it. His Honor confirmed the report as to the facts reported and as to the conclusions of law found, from which judgment the plaintiff appealed.

The two material exceptions to the report made by the plaintiff, and the only two receiving the attention of the Court, is sufficiently set out in the opinion delivered in the cause.

Smith & Strong and Battle & Son, for appellant .

Haywood and Fowle, contra .

RODMAN, J.

The first exception to the report of the referee is as to his conclusions of law respecting what is called the Poole note. The parts reported are as follows:

On 9th March, 1850, Jere. Nixon made his bond to Poole for $800, with Bledsoe and Yarborough as his sureties. On 9th July, 1855, Bledsoe paid the note and Poole indorsed and delivered it to him. The referee finds that Bledsoe did not intend to pay off the bond, but to keep it alive against the estate of Nixon who was then dead, and that Poole transferred it at the request of Bledsoe for that purpose. Jere. Nixon died December, 1854, and administration was granted on his estate, at February Term, 1855; the administrator died October, 1868, and Macy became administrator de bonis non March, 1871. The referee further finds that Nixon had made some payments on the bond before it was paid off by Bledsoe; that exclusive of the time from 21st May, 1861, to 1st January, 1870, more than ten years had elapsed between the last payment by Nixon and the time when plaintiff, Bledsoe, by amending his complaint in the action made the bond a cause of complaint; but that ten years had not elapsed from the payment by Bledsoe up to said amendment.

These latter matters in the view we take of this case are of no importance.

It is clear, at least at law, that by paying off the bond the plaintiff discharged it, and his right of action against Nixon upon a simple contract was barred by the statute of limitations in three years.

There are a number of cases which say that where parties contract in writing, and by mistake as to a matter of fact, or by accident, the writing differs from the contract really made, a Court of Equity will reform the written evidence of the contract, to make it conform to the real intentions of the parties.

There are also a number of cases in which it has been held that when the written contract contains accurately the real contract of the parties, although its legal effect is different from what the parties supposed it would be, in such cases a Court of Equity will not reform the contract so as to give it the effect in law which the parties expected it would have. The leading case on this doctrine is Hunt v. Rousmaniere, 1 Am. L. C. 404, and notes. But it is not necessary for us to enter into any discussion of such questions. In this case the writing was exactly what the parties desired it should be as a matter of fact, and had in law the effect they expected and intended it should have. It was evident that plaintiff, as surety for Nixon, had paid his debt, and by virtue of such payment he acquired a right of action against Nixon, which was what he expected and intended. His mistake, if any, was in supposing that his right would not be barred in three years. This is a mistake which many creditors have made, but they have not been relieved in Equity. We think this claim was barred by the statute of limitations, and (that statute being pleaded) did not form a legal item in the account between the plaintiff and the representative of Nixon. Report of referee affirmed.

2. The second exception is as to the finding of the referee upon the legal effect of the contract between plaintiff and Jere. Nixon, dated 12th May, 1854. The facts on this question so far as t...