Hooks v. Houston

• Decision Date: 15 December 1891
• Citation: 14 S.E. 49,109 N.C. 623
• Parties: HOOKS et al. v. HOUSTON et al.
• Court: North Carolina Supreme Court

14 S.E. 49

109 N.C. 623

HOOKS et al. v. HOUSTON et al.

Supreme Court of North Carolina

December 15, 1891

Appeal from superior court, Mecklenburg county; JAMES H. MERRIMON Judge.

Action by Hooks and Black against James A. Houston and others on a promissory note. Judgment for defendants. Plaintiffs appeal. Affirmed.

The other facts fully appear in the following statement by DAVIS J.:

The plaintiffs seek to recover the sum of $42.50, with interest at 8 per cent. from March 30, 1880, alleged to be due by note of defendant made payable on that day to H. A. Klutts, and indorsed to plaintiffs for value after maturity. The execution of the note was not denied, but the defendant relied upon the plea of payment, and, as a witness in his own behalf, testified in substance that he paid the note in cotton at Klutts gin, which was sold by Klutts and applied to the payment of the note. Upon cross-examination he testified in substance that he and Klutts entered into partnership to gin cotton, in which he was to have half; that by agreement one Tharrell was to take his place in the partnership, and he was to "come out;" that up to this time they had sold three bales of cotton, and two remained, one-half the proceeds of which was his. He had testified that the cotton weighed about 900 pounds, and brought about 10 1/2 cents per pound. Counsel for plaintiffs moved the court to strike out the defendant's plea of payment, and render judgment for the plaintiff, "upon the ground that the justice's court had no jurisdiction to settle partnership matters." Motion refused, and plaintiff excepted. There was further testimony by defendant on cross-examination in regard to the sale of cotton, and money collected for bagging and ties, to the amount of $60 to $75, of which the defendant used only $1; and the defendant testified that Klutts never asked him to pay the note; that he was notified by the plaintiffs in 1887 that they had the note, and that he was solvent at all times. The plaintiff renewed their motion which was again refused, and they excepted. Plaintiffs then introduced Klutts as a witness, who testified in substance that he and defendant were partners to gin cotton; that he saw Tharrell, and proposed "to sell out to him," when Tharrell told him he had "bought out Houston;" that Houston sold out without his knowledge; that he went to Houston for a settlement, but could not get it; that there were two bales of cotton left at the gin, and Houston told him to sell it, and pay the creditors, which he did; that nothing was said about applying Houston's interest in the cotton to the payment of the note; "all went to the use of the firm; total amount of the note is now due, and nothing has been paid." There was further testimony by this witness tending to show that the partnership had not been settled, and that the defendant sold out his interest to Tharrell for $10, without the knowledge of Klutts, and that nothing was said about applying the cotton to the payment of the debt sued on. T. J. Renfrow, the magistrate before whom the case was tried, testified as a witness for plaintiffs that both Klutts and Houston gave him statements, but he did not keep them, and does not remember what the items were. Houston claimed that he had left cotton to pay the note in question. Plaintiffs' counsel then offered to prove by the witness that, on the trial before him, Klutts and Houston both produced itemized statements of their respective claims in regard to the partnership business, and that witness made a calculation, and found 12 cents in favor of plaintiffs outside of note sued on. Neither witness nor parties can produce their statement, and witness cannot recollect what the items were, and has destroyed the statements and calculation, and can only state the balance he found due defendant. (Objected to. Objection sustained. Plaintiffs excepted.) Houston did not acknowledge or admit calculation made by witness. Houston said he told Klutts to take the cotton, and pay the note; that cotton was left there to pay the note. Houston claimed that the cotton was to go on the note. Do not recollect that he said Klutts agreed to it. Defendant then introduced Mrs. Houston, who testified as follows: "When my husband sold out, he told me the two bales of cotton were left there to pay the note. Mr. Klutts was not present at the time. (Plaintiffs objected. Objection overruled. Plaintiffs excepted.) I asked Mr. Klutts what was the difference between Mr. Houston and himself. He said nothing, or very little."

His honor charged the jury that the burden of proving payment was on the defendant. That the...