F. D. Cline Paving Co. v. Southland Speedways, Inc.
Decision Date | 20 May 1959 |
Docket Number | No. 462,462 |
Citation | 250 N.C. 358,108 S.E.2d 641 |
Parties | F. D. CLINE PAVING COMPANY v. SOUTHLAND SPEEDWAYS, INC., G. F. Penny, J. A. Morgan, Archie Fleming, Jr., C. C. Triplett and John W. Griffin. |
Court | North Carolina Supreme Court |
Hofler & Mount, Durham, for defendant appellants.
Ruark, Young, Moore & Henderson, Raleigh, for plaintiff appellee.
Appellants contend: (1) The filing of the lien and claim with the receiver for $18,342 was an election to release them, which now bars plaintiff's right to proceed against them; (2) the acceptance of the Chesnutt note was a payment of the note endorsed by them; and (3) if the acceptance of the Chesnutt note did not discharge their obligation, the acceptance of the stock in Capital Investment Company was a payment and discharge.
None of these contentions rests on a solid foundation. Speedways was the real or primary debtor; defendants were only secondarily liable. The mere fact that the creditor called on the party primarily liable and sought to compel it to pay the full amount of its debt is not inconsistent with the creditor's right to thereafter call upon the party secondarily liable to discharge his obligation. Since there was no inconsistency in plaintiff's procedure, it was not called upon to make an election as to the remedy sought. Thomas v. Catawba College, 248 N.C. 609, 104 S.E.2d 175; Carrow v. Weston, 247 N.C. 735, 102 S.E.2d 134; Surratt v. Charles E. Lambeth Insurance Agency, 244 N.C. 121, 93 S.E.2d 72; Baker v. J. J. Edwards & Son, 176 N.C. 229, 97 S.E. 16.
Payment is an affirmative defense, which must be established by the party claiming its protection. Auto Finance Co. v. McDonald, 249 N.C. 72, 105 S.E.2d 193. Defendants' plea of payment, if sustained, would require us to hold that a creditor who accepts from his debtor the obligation of a third person takes it in payment, releasing the debtor from his obligation irrespective of the intent with which the new obligation is assigned and accepted. The law is otherwise. It is, we think, correctly stated by Clark, C. J., in Grady v. Pink Hill Bank & Trust Co., 184 N.C. 158, 113 S.E. 667, 668, 28 A.L.R. 660: First Nat. Bank v. Hall, 174 N.C. 477, 93 S.E. 981; Terry v. Robbins, 128 N.C. 140, 38 S.E. 470; 70 C.J.S. Payment §§ 28-29, p. 240; 40 Am.Jur. 786.
Here the court has found there was no intent to take in payment. The fact, as stipulated, that defendants as well as plaintiff participated in the receivership proceeding without protest to the charge in form of creditors' claims against the properties of Speedways supports the finding and negatives the plea of payment.
The findings establish a partial discharge of Speedways indebtedness to plaintiff. This payment was not a voluntary payment made by Speedways as to which it could direct its application, or which in default of such direction, would permit the creditor to apply as may be most advantageous to it.
The payment came as the result of a lien on Speedways' property. G.S. § 44-1. That lien applied with equal force to each part of...
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