Huffman v. Gaither Lumber Co.

• Decision Date: 11 May 1915
• Docket Number: 486.
• Citation: 85 S.E. 148,169 N.C. 259
• Parties: HUFFMAN ET AL. v. GAITHER LUMBER CO. ET AL.
• Court: North Carolina Supreme Court

85 S.E. 148

169 N.C. 259

HUFFMAN ET AL. v. GAITHER LUMBER CO. ET AL.

No. 486.

Supreme Court of North Carolina

May 11, 1915

Appeal from Superior Court, Burke County; Harding, Judge.

Action by F. O. Huffman and another, attorneys in fact of the Wells Lumber Company, against the Gaither Lumber Company and another. From a judgment for plaintiffs, defendant Eugene Morrison appeals. Affirmed.

A party objecting to an answer because not responsive to a proper question asked the witness must move to strike out the answer.

This is an action to recover a balance alleged to be due on three notes of $400 each, executed by the Gaither Lumber Company the payment of which was assumed by the defendant Morrison president of said company.

The questions in controversy between the parties were:

1. Whether the Gaither Lumber Company was indebted to the plaintiff in the sum of $214.12 in addition to the three notes.

2. Whether the payment of $370.30 on October 25, 1909, should be credited on one of said notes, or whether a part thereof should be applied in satisfaction of the amount due on the open account and the balance upon the note.

The jury returned the following verdict:

1. Was the entry on the four-month note for $400, dated October 20 1909, as follows: "Received on the above three hundred seventy dollars and thirty cents ($370.30), October 25 1909"--made at the same time and as the same transaction as the words appearing thereon, "less open account $214.12, being credit of $156.18 on the note?" Answer Yes.

2. Were the words, "less open account $214.12, being credit of $156.18," placed on the note after the words, "Received on the above $370.30, October 25, 1909," as a different transaction? Answer: No.

3. In what amount was the defendant Gaither Lumber Company indebted to plaintiff by open account at the time the entry of $370.30 was made on the note? Answer: $214.12.

4. Is plaintiff's cause of action barred by the three-year statute of limitations? Answer: No.

5. Is the defendant Eugene Morrison indebted to the plaintiff, and, if so, in what amount? Answer: $250, with interest from October 10, 1912.

6. Is the defendant the Gaither Lumber Company indebted to the plaintiff, and, if so, in what amount? Answer: $250.

There was a judgment in favor of the plaintiff, and the defendant Morrison appealed, assigning the following errors: (1) To the ruling of the court permitting the witness F. O. Huffman to testify that an entry of credit on the back of a $400 note in the following words: "Received on the...