Lewis v. Bradley
| Decision Date | 30 June 1842 |
| Parties | E. D. LEWIS AND OTHERS v. JOHN BRADLEY. |
| Court | North Carolina Supreme Court |
In an action for breach of an agreement, which is in the nature of a guaranty, if the circumstance which is alleged as the foundation of the defendant's liability is more properly within the knowledge and privity of the plaintiff than the defendant, then notice thereof should be averred in the declaration, and proved on the trial.
But where it does not lie more properly within the knowledge of one of the parties than the other, notice is not requisite.
The cases of Green v Ricks, 3 Dev. Rep. 62. Adcock v Fleming, 2 Dev. & Bat. 470, cited and approved.
Appeal from the Superior Court of Law of Burke county, at Spring Term, 1842, his Honor Judge BAILEY presiding.
This was an action of Covenant, brought upon the following instrument, to wit:
“I, John Bradley, do hereby agree to bind myself to make all the bad debts created at the store in Buncombe county, No. Carolina, at a place called Limestone, trading under the firm of Bradley, Lewis and McKesson, to wit, John Bradley, George W. Bradley, Elias D. Lewis and William F. McKesson, and as said Lewis and McKesson has instituted suit, we have this day settled all matters on the following conditions, that I, John Bradley, do hereby bind myself, heirs and assigns, to see Lewis and McKesson paid for all notes and accounts created at the concern, so soon as they are handed over to an officer, and he returns the same insolvent, or that he cannot collect them; and it is further understood, that Lewis and McKesson pay all the costs of said suit, returnable to Burke Superior Court, against said Bradley--entered into this 24th Nov. 1837--witness my hand and seal.
JOHN BRADLEY, (Seal.)”
The evidence was, that the books of accounts and notes were handed over to McKesson--that he drew off the accounts and handed them and the notes to a constable for collection--that many of them could not be collected, and several of the debtors on the books were totally insolvent. The firm was composed of Lewis, McKesson, John Bradley, the defendant, and George W. Bradley; and the warrants were brought in the names of all. After the plaintiffs had closed their evidence, the defendant objected that they could not recover, for the reason that the undertaking was a collateral one, and that no notice had been given to him, before suit brought, that the debtors could not pay, or were insolvent. The plaintiffs contended that notice was not necessary, because the defendant knew as much about the situation of the debtors as they did; that the debts were contracted with him, and all they had to shew was, that the debtors were insolvent, or that the officer had returned (as he had done) that the notes and accounts could not be collected. A verdict was taken by consent for the plaintiffs, subject to be set aside and a nonsuit entered, if the court should be of opinion that notice was necessary. And the court, after hearing argument, being of that opinion, the verdict was set aside and judgment of nonsuit entered, from which the plaintiffs appealed.
No counsel appeared in this court on either side.
The defendant bound himself to pay all notes and accounts created at the firm, so soon as they were handed over to an officer, and he returned the same...
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