Cook v. Guirkin
| Citation | 25 S.E. 715,119 N.C. 13 |
| Court | United States State Supreme Court of North Carolina |
| Decision Date | 13 October 1896 |
| Parties | COOK. v. GUIRKIN et al. |
Pleadings —Borden op Proof—Admissions.
1. The burden is on one who sets up facts peculiarly within his own knowledge, or who has the custody of documents on which he relies to establish a certain averment, to prove such facts or averment, if material to his cause.
2. When defendant admits the truth of any of the facts which constitute plaintiff's cause of action, or entitle him to recover, such admissions, so far as they extend, have the same force and effect as a finding of the jury.
3. in an action to cancel a. note which plaintiff alleged had been paid in full by the sale of securities deposited with defendants, leaving a residue which plaintiff sought to recover in a second cause of action, defendants admitted the receipt of the securities, but averred that the proceeds of the sale were, with plaintiff's consent, applied to the payment of the debts due them from plaintiff. Held, that the burden was on defendants to show that they had a legal right to apply the fund in liquidation of other indebtedness in preference to the note.
4. in such case a motion by plaintiff for judgment on the admissions of the pleadings before impaneling a jury, or his refusal to offer proof in support of his second cause of action after the jury is impaneled, does not affect plaintiff's right to judgment on the first cause of action, though it waives his claim for relief on the second.
Appeal from superior court, Pasquotank county; Timberlake, Judge.
Action by P. M. Cook, administrator, against Guirkin and others to cancel a note, to restrain a sale under the trust deed securing the same, and for other relief. From a judgment for defendants, plaintiff appeals. Reversed.
E. F. Aydlett and B. B. Winborne, for appellant.
The plaintiff alleged that the defendant trustee holds his note for the sum of $464.60, due August, 1886, and secured by a deed of trust conveying a certain lot, and that on May 19, 1894, the other defendants caused the defendant trustee to advertise the same for sale. The plaintiff further alleged that the note had been paid and discharged in full by the sale of bonds and coupons deposited with the defendants, from which the defendants realized $1,500. The plaintiff demanded judgment that the note be canceled, and for the residue of the $1,500, and asked and obtained an injunction till the hearing. The defendants admit that they received securities worth more than $1,500 from the plaintiff, but aver that the proceeds of the sale of the bonds received were by plaintiff's consent applied to the payment of other debts due them from the plaintiff, after a settlement, and before the note and mortgage which gave rise to this controversy were executed. Upon the trial the plaintiff rested his case before the jury upon the admissions in the answer, and insisted that the laboring oar was with the defendants to show the lawful application of the fund which they admitted was received, otherwise the court should adjudge the application of it to the payment of the note secured by the mortgage.
Had the plaintiff simply set up, as a ground for the interference of the court of equity, that the debt secured by the mortgage had been paid, and had that allegation been met with a general denial, the burden wouldmanifestly have rested on the plaintiff to prove the payment; but when the defendants admitted the receipt of $1,500 from the plaintiff, and sought to avoid its application as a payment on the note by a general averment that it was lawfully applied to the payment of other claims held by them against the plaintiff, the question arose whether the burden was not shifted to the defendants. Was it not incumbent on them to show that a fund admitted to have been received was not properly applicable to the discharge of a debt acknowledged to have been then due, but that it was used in liquidation of other indebtedness, to which they might lawfully apply it in preference to the note?
The general rule is that the laboring oar remains with the plaintiff to establish every affirmative proposition that it is essential to prove in order to entitle him to the judgment demanded. But when the defendant admits the truth of any or all of the facts which constitute his cause of action, or entitle him to recover, such admissions, as far as they extend, have the same force and effect as a finding of the jury. Helms v. Green, 105 N.C. 262, 11 S. E. 170...
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Hunt v. Eure
...51 S. E. 784; Stewart v. Carpet Co., 138 N. C. 60, 50 S. E. 562; Womble v. Grocery Co., 135 N. C. 474, 47 S. E. 493. In Cook v. Guirkin, 119 N. C. 13, 25 S. E. 715, the court discusses the rule with reference to the production of evidence by the party who has such evidence within his own pe......
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Hunt v. Eure
...N.C. 31, 51 S.E. 784; Stewart v. Carpet Co., 138 N.C. 60, 50 S.E. 562; Womble v. Grocery Co., 135 N.C. 474, 47 S.E. 493. In Cook v. Guirkin, 119 N.C. 13, 25 S.E. 715, the discusses the rule with reference to the production of evidence by the party who has such evidence within his own peculi......
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