Covington v. Threadgill

• Decision Date: 28 February 1883
• Citation: 88 N.C. 186
• Court: North Carolina Supreme Court
• Parties: T. COVINGTON v. S. H. THREADGILL, Adm'r.

88 N.C. 186

T. COVINGTON

v.S. H. THREADGILL, Adm'r.

Supreme Court of North Carolina.

February Term, 1883.

CIVIL ACTION tried at Fall Term, 1881, of ANSON Superior Court, before Graves, J.

The plaintiff declares upon three notes, given him by the defendant's intestate, and also upon an open account.

The first note, dated in September, 1877, is for $49.95; the second, in November, 1877, for $40; and the third, in May, 1878, for $25. The account is a running one, commencing in May, 1878, and closing in September of that year, and is for $43.45.

The evidence was that the plaintiff was a licensed retailer of spirituous liquors in the town of Wadesboro, keeping also for sale cigars, tobacco, confectioneries, bacon and other groceries. The defendant's intestate was in the daily habit of buying spirituous liquors from him by the small measure, and drinking it in the shop, and often drunk to intoxication. At such times the plaintiff's custom was to charge the drinks as they were sold, upon strips of paper, which he would present to the intestate as soon as sober, and take his note therefor. Intestate would buy other articles which were charged in the same way, and also incorporated in the notes. The notes sued on were taken in this way, the greater part of each being for liquors sold, though exactly what part was for liquor and what for other things the witness (plaintiff) could not tell. They were not witnessed or taken in the presence of a witness. The open account was exclusively for liquors, the most of which was sold by retail.

The defendant requested the court to instruct the jury, that inasmuch as the notes sued on were given for liquors sold to his intestate by retail, and on a credit for a greater amount than ten dollars, the plaintiff, being a licensed retailer at the time, could not recover any part thereof, notwithstanding they were partly given for other articles, the sale of which was not prohibited. This instruction the court declined to give, but told the jury that if the notes were given in settlement of accounts made up partly of liquors sold, and partly of unprohibited articles, they should ascertain how much was given for liquors and how much for other articles, and as to the latter they should render their verdict for the plaintiff; and further, in case they should believe that the consideration of the notes consisted of liquors sold to the intestate, on a credit to a greater amount than ten dollars, that then they might return a verdict for the plaintiff, on account of the liquors thus sold, to the said amount of ten dollars.

The verdict was in conformity with the instructions given, and after judgment thereon, the defendant appealed.

Messrs. Hinsdale & Devereux, for plaintiff .

Messrs. J. A. Lockhart and Burwell & Walker, for defendant .

RUFFIN, J.

The defence rests upon the act of 1798 (Bat. Rev., ch. 81, § 4), which declares that “no retailer of liquors by the small measure shall sell to any person, on credit, liquors to a greater amount than ten dollars, unless the person credited sign a book or note in the presence of a witness in acknowledgment of the debt, under the penalty of losing the money so credited, and that in any action brought for the recovery of such debt, the matter of defence allowed by this section may be set up in the answer and given in evidence.”

The policy of the statute need not be commented on. It is such as has commended itself to the law-making power of the state, and the courts are in duty bound therefore to give effect to it, and it is not expected that any case will occur which will better serve to illustrate the wisdom of that policy and the necessity for its enforcement, than does this one between these...