Brummitt v. McGuire

• Decision Date: 06 November 1890
• Citation: Brummitt v. McGuire, 107 N.C. 351, 12 S.E. 191 (N.C. 1890)
• Parties: BRUMMITT v. McGUIRE.
• Court: North Carolina Supreme Court

12 S.E. 191

107 N.C. 351

BRUMMITT v. McGUIRE.

Supreme Court of North Carolina

November 6, 1890

This was a civil action, originally commenced before a justice of the peace, and tried, upon appeal, before MACRAE, J., and a jury, at the July term, 1890, of the superior court of Granville county. The following is the case settled on appeal, by appellee, and accepted by appellant: The plaintiff alleged that the defendant was indebted to him for money paid in excess of rent account, for a certain house in Oxford, for the year 1886. The defendant denied the debt, and alleged besides that the matter in controversy had been compromised and settled by the execution of a chattel mortgage and bond by the execution of a bond and security to stay proceedings by the judgment of S. V. ELLIS, J. P.; and by the payment of said mortgage. W. W. Brummitt, the plaintiff, testified "I rented a house for the year 1886, in Oxford, of R. H McGuire. I was to give him one hundred and twenty-five dollars for the year, and executed a note. I paid him a quarterly payment in advance, and, afterwards, paid him $21.25, and $10. I stayed in the house about seven months until about the 1st of August. I moved away about that time. The day I moved, Mr. Allen, defendant's attorney, told me he would indict me if I did not give him the keys, and I gave them to him. In February, 1888, 8 months after I had left the house, one N.H. Whitfield, a clerk in defendant's store, proposed to me to buy my pony. I asked $80 for the pony; he said he would give it, and told me when to bring him down. I brought the pony, and Whitfield came out and told me to give him to the boy standing there, and he would pay me for the pony as soon as McGuire came back from the court-house. I waited until McGuire came back, and went into the office with him. McGuire said, 'You owe me a note I have got against you,' taking the note from his safe. I said I did not think I owed him anything. He said: 'Yes, you do. We have got your pony, and you will have it to pay before you get him.' Whitfield said nothing to me about the note. He was not present. I then left McGuire's office, and went up to Whitfield's house to get my pony. Whitfield had the pony locked up, and told me, ___ it, if I could get him, to get him. I then went home. It was Saturday. Monday I came back and fixed up the papers to get the pony. I did not know how much I owed McGuire, and, before giving up the pony, he required me to execute to N.H. Whitfield a note for $38 secured by a chattel mortgage on the pony and other property, which was assigned to McGuire. I have paid the $38 note to McGuire. Since looking up the receipts I had taken, I find that, on the day the note for $38 was executed, I owed him only $10.41. McGuire claimed I owed him the balance on the $125 note. It was $41 or $42 I paid McGuire on the $38 note made payable to N.H. Whitfield, and assigned to him. McGuire got a new tenant in about two weeks, I think." Defendant's counsel then asked witness if he did not trade the pony before the Whitfield mortgage was due; if McGuire did not institute claim and delivery proceeding, and take the horse from Young Dixon; if he was not present at the trial, and did not consent to the judgment of S. V. ELLIS, J. P.; and if he did not pay the $38 note to McGuire. To all these interrogatories the plaintiff objected, upon the ground that the plaintiff was not a party to the claim and delivery proceedings, and was not bound by the proceedings or the judgment therein rendered. Objection overruled. Witness then said he had heard of the claim and delivery, but that he was not a party to the suit, nor was he present at the trial, nor did he consent to the judgment; that he paid the $38 note to protect Dixon. He traded the pony to Dixon. Judgment in case of N.H. Whitfield, to Use of R. H. McGuire, vs. Young Dixon was settled between the parties April 24, 1889. The note set out is for $38, executed under seal by the plaintiff, Brummitt, to N.H. Whitfield, on the 6th day of February, 1888, payable on or before the 1st day of October, 1888, "secured by mortgage," and indorsed by Whitfield to defendant, McGuire, "without recourse." Jordan McIver was sworn. He said the house Brummitt lived in was occupied in about two weeks after Brummitt left. B. T. Fuller was sworn. He said he moved Brummitt from the house. It was the 1st of August. R. H. McGuire testified: "Brummitt occupied the house until about the middle of August, and I did not get a renter in two or three weeks after the time. I sold the Brummitt note for $125, subject to a credit of $62.60, to Whitfield for $20. He did not pay cash for the note, but I charged him up with the $20 the day I sold him the note. When Whitfield bought the pony of Brummitt he offered the $125 note on which $62.50 was due, and the balance in money for the pony. Brummitt refused to do this. Whitfield took the new note for $38. After he got the note for $38, he assigned the same to me without recourse." Witness then produced his books and, after examining them, said the entries were made in the book on February 9th, which was five days after the note was sold to Whitfield, and that the entry showed it was $18 instead of $20, as stated, but that the trade between him and Whitfield was fair and square. "When I found that Brummitt had traded the pony on which I, as assignee of Whitfield, held the $38 note and mortgage, I instituted claim and delivery proceedings, and Crews, the constable, brought the pony to town under the papers. The day of the trial, April 24, 1889, John Elliott came in and gave me his note at 30 days' time to stay the proceedings. I took the note and the suit was stopped and settled." N.H. Whitfield testified: "I bought the $125 note from McGuire for $20. I didn't pay him cash. I bought the pony from Brummitt, and sent him up home to the stable, and locked him up. Brummitt executed the note and mortgage to me, and assigned it to McGuire. The trade between me and McGuire was fair and square." Defendant's counsel asked the court, in writing, and before the argument, to charge as follows: "(1) Taking the plaintiff's own evidence, he cannot recover. (2) Money paid voluntarily, with full knowledge of all the facts, in the absence of any agreement expressed or implied to repay it, cannot be recovered back, even if paid under protest. (3) There is no evidence in this case of any agreement to repay the money paid McGuire by Brummitt, or Elliott, his agent. (4) The plaintiff is estopped by the chattel mortgage of $38. (5) The plaintiff is estopped by the payment of the $40 by Elliott. (6) There is no evidence that Brummitt paid the money without a knowledge of the facts. (7) This action cannot relate to or affect the execution of the $38 bond and mortgage of 6th February, 1888....