Henry Brunhild & Bro. v. Freeman
| Decision Date | 30 June 1877 |
| Citation | 77 N.C. 128 |
| Court | North Carolina Supreme Court |
| Parties | HENRY BRUNHILD & BRO. v. WILLIAM E. FREEMAN and another. |
OPINION TEXT STARTS HERE
CIVIL ACTION tried at January Special Term, 1877, of NEW HANOVER Superior Court, before McKoy, J.
The case is sufficiently stated by Mr. Justice READE in delivering the opinion of this Court. Verdict and judgment for plaintiffs. Appeal by defendants.
Messrs. A. T. & J. London, for plaintiffs .
Mr. D. L. Russell, for defendants .
The plaintiff sold goods to one Mayer to the amount of $415, and took from Mayer as collateral security therefor eight notes for $125 each, which Mayer held upon the defendant. The defendant subsequently gave to the plaintiff on account of the transaction four notes for $100 each, and this action is upon one of these four new notes. And the plaintiff had a verdict and judgment. This is all plain enough, but the defendant says that at the time when he gave the plaintiff the four new notes, it was upon the understanding that the eight old notes were to be delivered up to him by the plaintiff, and that the plaintiff refused to deliver them up. And the plaintiff having refused to comply with his part of the contract to deliver up the old notes, he, the defendant, was not obliged to comply with his part of the contract to pay the new notes.
By what sort of financial legerdemain the defendant supposed that he could fairly get clear of the $1000, which he owed Mayer by giving his notes to the plaintiff for $400, he seems not to have made plain to the Court below, nor is it plain to us. He did get credit upon the old notes for the amount of the new. And that was all he was fairly entitled to. Indeed he got credit for $15 more than the new notes. The justice of the case is therefore administered by the verdict and judgment below, and they must be sustained unless some general principle has been violated.
The facts are not sent up as they ought to have been, but the testimony on both sides is stated, and the verdict of the jury finding all the issues in favor of the plaintiff. So that we are to take the facts as stated by the plaintiff to be true, and the verdict must be sustained, unless it appears that His Honor committed some error.
The testimony for the plaintiff was, that he held the eight notes for $125 each upon the defendant only as collateral to secure him $415, which Mayer owed him, and that he agreed with the defendant to take his four new notes for $100 each and enter a credit of $415, on the old notes, informing the defendant that he would then have to re-deliver the old notes to Mayer, and that this was done. The testimony on the part of the defendant was, that it was agreed between him and the plaintiff that upon his giving the...
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