H.L. Beck & Co. v. Bank of Thomasville

• Decision Date: 20 December 1912
• Citation: H.L. Beck & Co. v. Bank of Thomasville, 76 S.E. 722, 161 N.C. 201 (N.C. 1912)
• Parties: H. L. BECK & CO. v. BANK OF THOMASVILLE et al.
• Court: North Carolina Supreme Court

76 S.E. 722

161 N.C. 201

H. L. BECK & CO. v. BANK OF THOMASVILLE et al.

Supreme Court of North Carolina

December 20, 1912

Appeal from Superior Court, Davidson County; Allen, Judge.

Action by H. L. Beck & Company against the Bank of Thomasville and another. Verdict for defendants, and plaintiff appeals. Modified and rendered in part and reversed in part.

A settlement of a prior usurious agreement is lawful, and the debtor is entitled to the amount he so receives.

This case was before us at a former term, and is reported in 157 N.C. at page 105, 72 S.E. 632. It is there stated that actions were brought by plaintiffs, the first to correct errors in their account with the defendant bank; plaintiffs alleging in this one of the actions that charges against them were wrongfully made by defendant bank, and checks were paid which were not drawn by them, and further, that defendant bank refund to pay certain checks drawn by plaintiffs on it when it had funds of plaintiffs on deposit fully sufficient to cover the total amount of the checks so drawn, and that by reason thereof, plaintiffs were injured in their credit to the amount of $2,000. The other action was against the defendant J. L. Armfield, who was cashier of the bank, for defamation of character; and the plaintiffs make certain allegations therein as to the account between them, not necessary to be stated here, as they are eliminated by the referee's report and the rulings of the court thereon in favor of said defendant, the material allegation being that the defendant J. L. Armfield charged publicly, falsely, and wrongfully, in the presence of several persons named in the complaint, that the plaintiffs were bankrupt or in an insolvent condition and would have to retire from business and further that the plaintiff, H. L. Beck, had misapplied and embezzled lumber and money, or funds in his hands belonging to others, with intent to injure H. L. Beck and the said firm, and thereby damaged the plaintiffs to the amount of $10,000. The two actions were consolidated by consent, and the cause was then referred to Hon. E. L Gaither to take and state an account of the transactions and dealings mentioned in the complaint, reserving the issues as to the slander for trial upon the coming in of the referee's report. The report was filed and several exceptions taken thereto by plaintiffs, some of which were allowed and others overruled. Plaintiffs then assigned errors and appealed, but the appeal was dismissed in this court as premature (157 N.C. 105, 72 S.E. 632), as there was no final judgment, and the case was remanded to try the issues as to the slander, which were not submitted to the referee. That case was tried at April term, 1912, of the superior court, upon the following issues: "(1) Did the defendant Armfield publish of and concerning the plaintiff defamatory matters set out in the eighth paragraph of the plaintiff's complaint, as alleged in the complaint? (2) If so, were the same false and malicious? (3) Did the defendant Armfield publish of and concerning the plaintiff the defamatory matter alleged in the eleventh paragraph of the complaint, as alleged in said complaint? (4) If so, were the same false and malicious? (5) What damages, if any, are plaintiffs entitled to recover?"

A witness for the plaintiffs testified that the defendant J. L. Armfield had, in his presence and hearing, charged that H. L. Beck had embezzled certain lumber, and that if he did not arrange the matter to his satisfaction he would have to "take him up for it." Another witness testified that Armfield had said to him that Beck was "in pretty narrow straights"; in other words, he said that Beck had acted as an embezzler. We give his words here: "I can't tell the words exactly, but that he had embezzled some one out of the money he had received on that note, and the best way out of it was for Beck to give us the mortgage and we could indorse it to him, and that Beck was liable for criminal prosecution. He said Beck had embezzled funds not properly applied, or something to that effect, and that he was liable for a penitentiary crime. That was the substance of what he said." This witness also stated that Armfield had threatened Beck with a criminal prosecution in order to obtain a mortgage for a debt the bank or Armfield held against him. There was evidence that Armfield said that he could put Beck in the penitentiary, and that the persons to whom he was speaking, Hall and Daniels, had better accept the new note and mortgage from Beck and assign it to the bank to make good his defalcation, as it was all in their family, and the note and mortgage were executed, in consequence of the threat, and turned over to the bank, of which Armfield was the cashier. Armfield further stated that Beck had embezzled and, "if he did not mind, he would be put in the penitentiary." Plaintiffs then offered in evidence the following part of paragraph 8 of defendant's answer: "The defendant admits telling Christopher Shaw that H. L. Beck was, in defendant's opinion, liable for prosecution, not only in the Delk matter, but on account of his conduct to defendant and others." Also a part of paragraph 11 of defendant's answer, viz.: "And (he) does not deny having said that, in his opinion, the defendant H. L. Beck was liable to criminal prosecution." J. L. Armfield was a witness in his own behalf, and among other things testified: "I said to Christopher Shaw that I thought that H. L. Beck had done such dirty business that he was liable to be criminally prosecuted, and I say that now. I did not mean that as much about the Delk matter as the other matters; no more about that than others. When I stated in the eighth paragraph of my answer the following, 'Not only on account of the Delk matter, but on account of his other dealings,' that is a mistake; it is a typographical error. I did tell Christopher Shaw that H. L. Beck was liable to prosecution, not on account of the Delk matter, but other matters. When I made my answer, I told my attorney to put it there, not on account of the Delk matter, but other matters. Shaw told me he had understood that there were some papers there with my signature to them. I did not intend to convey to the mind of Delk in that letter that Beck had improperly signed my name to any papers. I was in my usual humor when I wrote it." The "Delk matter" to which he refers in his testimony was a letter written by J. L. Armfield to Jno. B. Delk, February 12, 1907, as follows: "Dear Sir: I have just learned that you have a contract with H. L. Beck on which my name appears, and I beg to notify you that this contract was made without my knowledge or consent, and that at no time have I ever authorized him to sign any agreement or contract for me, and that at no time have I been in partnership business with him. Yours very truly, J. L. Armfield." H. L. Beck testified that there was such a partnership arrangement, and that he committed no fraud or embezzlement. There was much more testimony, but we have given the above summary, which will sufficiently show the bearing of the evidence upon the issues and ruling of the court. Plaintiffs excepted to the ruling of the court, which directed a verdict for the defendant upon the issues, and appealed to this court.

E. E. Raper, of Lexington, and T. J. Shaw, of Greensboro, for appellant.

Justice & Broadhurst, of Greensboro, for appellees.

WALKER, J. (after stating the facts as above).

We are of the opinion that there was error in the ruling of the court. The question being whether there was any evidence to be submitted to the jury, it is not necessary that we should set out the testimony of the defendant, which tends to...