Chicago Portrait Co v. Miller

• Decision Date: 10 January 1934
• Docket Number: No. 320.,320.
• Citation: 205 N. C. 539,172 S.E. 192
• Court: North Carolina Supreme Court
• Parties: CHICAGO PORTRAIT CO. v. MILLER et al.

172 S.E. 192

205 N. C. 539

CHICAGO PORTRAIT CO.

v.MILLER et al.

No. 320.

Supreme Court of North Carolina.

Jan. 10, 1934.

Appeal from Superior Court, Iredell County; Warlick, Judge.

Action by the Chicago Portrait Company against H. V. Furches and another. Judgment for plaintiff, and defendants appeal.

Affirmed.

The plaintiff employed as a salesman of its products Allen Richard Miller. It required the salesman to have executed a certain letter of credit, guaranteeing the faithful performance of the contract and "payment to you of any and every sum of money collected by or paid to him. The repayment to you of any and every advance of money made to him by you or your agents. The proper and true accounting to you for all portraits, frames, samples, and other merchandise that may come into his possession or control from time to time, " etc. The defendants, Miller and Furches, signed said letter of credit and thereby obligated themselves to answer for the default of their principal, Richard Miller, and for each and every "sum of money collected by or paid to him."

Richard Miller entered upon his employment, and on July 23, 1932, the plaintiff claimed that the said Miller owed a balance of $540.28, and on said date the said Richard Miller, in the presence of the defendant J. G. Miller, signed a statement as follows: "July 23, 1932. Chicago Portrait Company, Gentlemen: I acknowledge receipt of statement of my account as District Manager with the Chicago Portrait Company up to and including 30th day of June, 1932, showing a debit balance of $540.28. Remarks: I have checked same carefully and find it correct with the exception of items noted under 'Remarks.' Signed Richard Miller." No exceptions were noted. There was undisputed evidence that the superintendent of collections of the plaintiff notified the defendants of the amount claimed to be due by the plaintiff, and both of said defendants agreed that J. G. Miller meet an agent of plaintiff in Washington and go over the account. Subsequently J. G. Miller and Richard Miller met in Washington and went over the account, andthereupon the said Richard Miller signed the statement referred to.

The defendants filed an answer denying any failure on the part of Richard Miller to perform the duties of his employment or that he was indebted to the plaintiff in any amount. At the trial evidence was offered tending to show that three items amounting to $81.06 due Richard Miller by the plaintiff company had been credited by and with the consent and approval of Richard Miller to an old account...