Brem v. Allison
| Decision Date | 31 January 1873 |
| Citation | 68 N.C. 412 |
| Court | North Carolina Supreme Court |
| Parties | THOMAS H. BREM v. JOHN ALLISON. |
Where the suit is between a member of the firm and a stranger, and the terms of the partnership which are in writing is not the question at issue, but comes up collaterally, it is not necessary to introduce the writing. Oates, Williams & Co. v. Kendall, 67 N. C. Rep. 241.
Where A having a bond against principal and surety and a member of a firm to which A is indebted, who is the son of the principal of the bond agrees to take the bond and credit A's account, which is done, and where A said he understood it to be a payment, and where the Judge who tried the cause refused to charge the jury that if A understood it to be a payment it was a payment and they must so find: Held, to be no error.
Where there is conflicting testimony and divers witnesses, it is seldom the case that the Judge can pick out any single witness, and say, if you believe him you must find for the plaintiff or defendant.
There may be cases where it would be proper, but generally it is safer to put the case to the jury upon all the evidence, with proper explanations.
CIVIL ACTION, tried before Henry, J., at special January Term, 1872, of MECKLENBURG Superior Court.
The bond sued on was as follows:
$300. On the first day of January, 1860, we, or either of us, promise to pay W. F. Davidson, the sum of three hundred dollars for rent of his dwelling house and lot for the year 1859.
+-----------------------+
¦(Signed)¦J. A. SADLER, ¦
+--------+--------------¦
¦ ¦J. ALLISON. ¦
+-----------------------+
W. F. Davidson, for defendant, testified that some time after the bond became due, the amount of it was paid to him, by James Sadler, Jr., son of the principal of said bond, by crediting the amount thereof upon the account of said Davidson, with the firm of Brem & Co., composed of the plaintiff, one Alexander and James Sadler, Jr., and that on getting his account credited with said firm for the amount of said note, he delivered the same to said James Sadler; and it was witness' understanding that the note was thus paid by said James Sadler, Jr., for his father, James A. Sadler, and not purchased by said James Sadler, Jr., for his said firm. The plaintiff testified that he, one Alexander and said James Sadler, Jr., were partners, all the capital being his, and the others having an interest in the profits, as compensation for their services; that this note was received by James Sadler, Jr., and the amount of it credited on the firm account against Davidson, and it was placed by him, Sadler, Jr., among the assets of the firm; and that said Sadler, Jr., did not charge himself with the amount of the same or any part of it. That subsequently on dissolution of the firm several years before the commencement of this action, the said note and the other assets of said firm became the the individual property of the plaintiff by the terms of dissolution. Defendants counsel objected to witness Brem's speaking of the terms of the partnership or of the dissolution without producing the written evidence; but His Honor allowed witness to speak of so much of each as is stated above. Defendant excepted.
Defendant's counsel asked his Honor to charge the jury that if Davidson's version of the transaction was correct, the note was paid and the plaintiff could not recover. His Honor instructed the jury that if Sadler, Jr., paid the note for his father it was a discharge of the debt; but if he only took it in payment of Davidson's account and placed it among the assets of the firm, and the other evidence of plaintiff was believed, they should find for plaintiff.
Verdict for plaintiff. Judgment and appeal.
Wilson, for appellant .
Dowd, contra .
If the suit had been between the plaintiff and his co-partner, and the terms of the partnership had been the question at issue, and if the terms were in writing, it would have been necessary to introduce the writing as being the best evidence. But that rule does not obtain when the suit is between the plaintiff and a stranger, and the terms of the partnership is not the question at issue, but comes up collaterally. Oates, Williams & Co. v. Kendall, 67 N. C. Rep., 241. It is true, as contended for by the defendant, that “when the terms of a verbal agreement are ascertained, its construction, like a written agreement, is for the Court and not for the jury.” That being conceded, then the defendant says he was entitled to the instruction asked for, viz.: “That if Davidson's version of the transaction was correct, the note was paid and the plaintiff could not recover.” The facts not disputed, are that one Sadler, as principal, and the defendant, as surety, executed the bond in controversy to one Davidson; and Davidson owed an account to the plaintiff's firm; that a son of the said Sadler was a member of the plaintiff's...
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...Life Ins. Co., 42 Hun (N.Y.), 655, 6 N.Y. St. 376; Jackson v. Greene County Commrs., 76 N.C. 282; Willey v. Gatling, 70 N.C. 410; Brem v. Allison, 68 N.C. 412.) T. Walters, Atty. Genl., J. P. Pope, Asst. Atty. Genl., Edwin H. Snow and Laurel Elam, for Respondent. Where there is a substantia......
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