Gordon v. Price

• Decision Date: 31 December 1849
• Citation: 32 N.C. 385,10 Ired. 385
• Court: North Carolina Supreme Court
• Parties: JOHN D. GORDON v. GEORGE PRICE.

10 Ired. 385

32 N.C. 385

JOHN D. GORDON

v.GEORGE PRICE.

Supreme Court of North Carolina.

December Term, 1849.

In an action upon a bill of exchange, the evidence of a witness, who cannot swear to the hand-writing of either party of the firm, in whose name the bill was drawn, but who testifies, that, in his opinion, the hand-writing was the same as that of many notes, he had presented to the firm and which had been paid by them, was competent, and it was proper to leave such evidence to the jury, to be judged of by them.

By the law merchant, a protest of a bill by a public notary is, in itself, evidence. And by our Statute, Rev. Stat. ch. 13, sec. 10, such protest is prima facie evidence.

Where a bill has been drawn by A. upon B., in favor of C., and is protested for non payment, the acceptance by C. of another bill from B, unless it is expressly understood that this is to be a satisfaction of the debt due by A, does not debar C. of his action against A. upon the original bill, provided the bill of B. is dishonored. But it is necessary, for C., in his suit upon the original bill, to shew that he used proper diligence on the second bill and could not obtain payment.

The cases of Pope v. Askew, 1 Ire. 16, and State v. Harris, 5 Ire. 287, cited and approved.

Appeal from the Superior Court of Law of Chowan County, at the Spring Term 1849, his Honor Judge MANLY presiding.

The action is assumpsit by the payee of a bill of exchange for $500, purporting to be drawn at Edenton in this State by George Price & Co., on Thomas McAdam & Co, of New York, on the 11th of November 1844, and payable at sight, and it was tried on non-assumpsit, and satisfaction pleaded.

The firm of George Price & Co., was composed of George Price, the defendant, and one Daniel Messmore, and, at and before the drawing of the bill, did business in Edenton. To establish the drawing of the bill, a witness for the plaintiff deposed, that he knew the hand-writing of the defendant, and that the signature to the bill was not written by him; that he had never seen the other partner, Messmore, write, and he could not say, whether he signed the bill or not; but that he was a constable in Edenton, while George Price & Co. did business there, and had frequently received for collection notes in their name, which he presented at their place of business, and that they were paid by the firm; and that the bill sued on and those notes were in the same hand-writing. This evidence was objected to on the part of the defendant, but was received.

The plaintiff further offered in evidence a protest of the bill, made on the 16th of November 1844, for non payment, purporting to be under the signature and seal of a notary in New York. On the part of the defendant, it was insisted, that it could not be received without proof of the hand-writing and official character of the person professing to be a notary. But the Court allowed it to be read to the jury.

On the part of the defendant evidence was then given, that the plaintiff lived in Norfolk in Virginia and cashed the bill there at the request of one McAdam of that place, who carried it to him for that purpose; and that, upon the return of the bill protested and information thereof to McAdam, he offered the plaintiff a bill drawn by “McAdam & Brother,” of Norfolk, on “Thomas McAdam & Co.” of New York, and payable to one Gray, for the amount then due on the bill sued on, and endorsed by Gray to the plaintiff, and that the plaintiff received the same. Thereupon the plaintiff gave evidence, that the bill last mentioned was not paid at maturity, but protested for non-payment; and that, upon the return of it, the plaintiff recovered judgment thereon against Gray, but was unable to obtain satisfaction thereof. Upon that evidence the counsel for the defendant prayed an instruction to the jury, that the second bill, so received by the plaintiff, was a satisfaction of that sued on in this action, and that the drawers were thereby discharged. But the Court refused to give the instruction, and directed the jury, that accepting the second bill would not amount to a payment or satisfaction of the bill sued on, unless it was given and received, upon an agreement that it should be a satisfaction.

After a verdict and judgment for the plaintiff the defendant appealed.

Burgwin and A. Moore, for the plaintiff .

Heath, for the defendant .

RUFFIN, C. J.

Upon the point, as to the proof of the hand writing, the case seems to be one of that class, in which the proof has been allowed to come from a witness, whose knowledge of the writing was...