Carroll v. Brown

• Decision Date: 24 March 1948
• Docket Number: 310
• Parties: CARROLL v. BROWN et al.
• Court: North Carolina Supreme Court

46 S.E.2d 715

228 N.C. 636

CARROLL v. BROWN et al.

No. 310

Supreme Court of North Carolina

March 24, 1948

Civil action to recover on a promissory note executed April 30, 1946, for $600 alleged to be due and payable one day after date with interest at the rate of six percent per annum until paid.

The defendants filed answer, alleging that at the time the note was executed it was agreed by the parties that the note was not to draw interest and that the principal sum was to be paid out of the profits of a partnership business in which the plaintiff and the defendant, Arlie W. Brown, were then engaged. The defendants further allege in their answer that the plaintiff has heretofore wrongfully taken over all the partnership assets which were sufficient to pay the said note. The defendants also set up a counterclaim and ask for an accounting of the assets of the partnership.

The plaintiff filed a reply in which he denies there were any profits derived from the partnership and alleges that he has heretofore closed out the partnership business.

When this cause came on for hearing in the Court below, counsel for plaintiff moved for judgment on the pleadings. The motion was allowed and judgment was entered for the principal sum together with interest thereon at six percent per annum, from April 30, 1946, until paid. The defendants appeal, assigning error.

T C. Bowie, Jr., of West Jefferson, for appellant.

Trivette Holshouser & Mitchell, of North Wilkesboro, for appellees.

DENNY Justice.

The only question involved on this appeal is: Was the plaintiff entitled to judgment on the pleadings?

The allegation of the plaintiff to the effect that the note upon which he bottoms his action, draws interest from date until paid at the rate of six percent per annum, is denied by the defendants in their answer. The note is not set out in the complaint, hence we think the pleadings raise a question of fact for the jury. Bessire & Co. v. Ward, 206 N.C. 858, 175 S.E. 208; Wilson v. Allsbrook, 203 N.C. 498, 166 S.E. 313.

Moreover, the defendants allege it was understood at the time this note was executed that it was to be paid out of partnership profits, from a partnership in which the plaintiff and one of the defendants, Arlie W. Brown, were then engaged. In the case of Ripple v. Stevenson, 223 N.C. 284, 25 S.E.2d 836, 837, this Court said: 'It is permissible for the parties to agree that a note shall be paid only in a certain manner, e. g., out of a particular fund, by the foreclosure of collateral, or from rents collected from a certain building, etc. Jones v. Casstevens, ...