De Loache v. De Loache

• Decision Date: 08 April 1925
• Docket Number: 330.
• Citation: 127 S.E. 419,189 N.C. 394
• Parties: DE LOACHE v. DE LOACHE.
• Court: North Carolina Supreme Court

127 S.E. 419

189 N.C. 394

DE LOACHE v. DE LOACHE.

No. 330.

Supreme Court of North Carolina

April 8, 1925

Appeal from Superior Court, Alamance County; Cranmer, Judge.

Action by William F. De Loache against T. B. De Loache. Judgment for plaintiff, and defendant appeals. New trial.

Form of issues submitted to jury is discretionary.

The plaintiff complained for the sum of $1,376.50, one-half of the profits received by the defendant in the sale of the Clapp store lot, in Burlington, pursuant to an agreement with the defendant to purchase and dispose of said property, as partnership property, each sharing equally in the profits.

The defendant denied the partnership, claiming that there was an offer, on his part, to admit the plaintiff into a partnership agreement, as to this property, upon the performance of certain prerequisites by way of payments by plaintiff, which were never performed; and the defendant further pleaded that a full and complete and final settlement with the plaintiff for all moneys paid, and for all things due him, was had on April 14, 1923.

The jury returned the following verdict:

"1. In what amount, if anything, is the defendant indebted to the plaintiff? Answer: Yes, $500."

Two checks were given by defendant to plaintiff during these transactions, as follows:

(1) "Burlington, N. C., 4--12--1923. No. 11953. Alamance Bank & Trust Co., 66-135: Pay to the order of T. B. De Loache $500.00, five hundred dollars, insured dollars. For ______ A. V. Ray Boone, Sec. & Treas. C. W." This check contained on the back thereof the following: "Delivered to W. F. De Loache in payment for money spent upon the Clapp Building, Burlington, N.C. T. B. De Loache, W. F. De Loache."

(2) "Burlington, N. C., 4/14/23. No. ______. Alamance Bank & Trust Co. 66-135: Pay to the order of W. F. De Loache $68.71 sixty-eight and 71/100 dollars. For ______. T. B. De Loache." This check contained on the back thereof the following: "Received of T. B. De Loache a complete and full settlement for sale of Clapp store and all accounts up to 4/14 day, 1923. De Loaches. W. F. De Loache." The record shows no challenge against the validity of the entry on the back of the first check, but the plaintiff alleges that the entry on the back of check No. 2 resulted from the defendant's intent to cheat and defraud the plaintiff, and that he falsely and fraudulently indorsed the same on the back of said check.

The plaintiff says that check No. 1 was received by him from the sale of the Clapp store, which he agreed to, and that he indorsed that check. He further said that he had paid only $450 on the purchase price of the Clapp store, and the $500 was for the purpose of repaying this, with interest. He further says that the entry of a complete and full settlement was on check No. 2, when he signed it.

It appears from the evidence of both the plaintiff and the defendant, that the amount, to wit, $68.71, represented by check No. 2, was arrived at after the plaintiff and the defendant had figured for some time with a big bunch of papers, and that this is the amount that the defendant stated was the correct result of the "casting up" of the accounts between them. It appears that the papers from which they reckoned were destroyed soon thereafter, with the knowledge of both parties. The plaintiff further stated that the defendant told him at the time of the delivery of check No. 2 that "this check will make us square for the repairs alone," and that the plaintiff replied:

"Look here, this check covers everything. Looks to me like you are trying to claim this check in settlement of the store trading and everything. That does not look like business to me."

The entry on the back of the check No. 2, was read by plaintiff, and the evidence for plaintiff shows further discussion of its scope and effect. The plaintiff claimed that he relied upon the defendant's statement, that it only related to the repairs on the Clapp store, in accepting the check. It further appears that plaintiff cashed this check on or before April 17, 1923.

There was much testimony tending to show the respective contentions of the parties, as to the other phases of the transactions involved.

Coulter & Cooper, of Burlington, for appellant.

Carroll & Carroll, of Burlington, for appellee.

VARSER J.

There are many exceptions appearing in the record aimed at the reception and rejection of evidence during the trial, which become immaterial in light of the views of this court upon the plea of settlement in defendant's answer, and, inasmuch as they may not occur in another trial of this cause, they are not now decided.

The defendant's chief contention is that the trial court did not give him the full benefit of the effect of the settlement evidenced in the entry on check No. 2, as above set out, and that the court was in error in submitting to the jury, as a question of fact, the issue of debt to be determined by them from the evidence, as to whether the defendant is indebted to the plaintiff, directing them that, if they "find by the greater weight of the evidence that he is indebted to him," to answer the issue in such sum as they may so find. The defendant also excepted to the refusal of the trial court to sustain his motion for judgment as of nonsuit. We will consider the motion for nonsuit only as it applies to the question of fraud.

This court is of opinion that the trial court erred in its charge to the jury on the issue of debt, in so far as the same is affected by the defendant's plea of full and complete settlement of account and satisfaction, set out on check No. 2. It appears clearly from the plaintiff's own evidence that he was fully apprised of all the facts with reference to the accounts representing the moneys paid out, by him and by the defendant, in the renovation and repairs of the Clapp store building (after he had paid his $450 on the initial payment on the purchase price), up until the sale of the Clapp store to one Brown. This sale was made with his knowledge and consent. The $500 check, received by the defendant as a cash payment from Brown, was delivered to plaintiff. This check is set out above as check No. 1. After that was done, the parties came together and were in conference for some time, "figuring up" their respective contentions, and from this, the sum of $68.71 was arrived at and paid to plaintiff by check No. 2, with the statement indorsed thereon that it was a "complete and full settlement for sale of Clapp store and all accounts up to 4/14 day, 1923." It is admitted that these latter figures mean April 14, 1923.

It appears that this check No. 2, is dated April 14, 1923, and that it was paid on the 17th day of April, 1923, and that plaintiff indorsed the same and received the proceeds thereof. Eliminating, at present, the question of fraud, we are of the opinion that this case comes within the doctrine announced in Kerr v. Sanders, 122 N.C. 635, 29 S.E. 943. In that case there was a controversy as to amount due for certain services, and in a letter of discharge, the defendant sent to the plaintiff a check for $75 with the notation thereon, "in full for services." The plaintiff indorsed thereon:

"This check accepted for one month's services, beginning September 4 and ending October 4, 1893."

He then collected the check and used the money. Plaintiff contended that he had refused this proposition a few days before that and that he, thereby, did not intend to accept this check in full settlement. The court says:

"The plaintiff must have known what was meant by the words written on the face of the check, 'in full for services,' inclosed in the letter discharging him from the service of defendants. It is certain he was not inadvertent to this language, 'in full for services,' as he would not have indorsed on it 'accepted for one month's service,' etc., and the jury have found against him. The plaintiff had no right to change this check or to accept it for any other purpose than that stated in the letter and check." Long v. Miller, 93 N.C. 233; Pruden v. Railroad, 121 N.C. 509, 28 S.E. 349.

The court then makes this further statement:

"This doctrine is based on the idea of contract. 'It takes two to make a contract.' The offer of the defendants and the acceptance by the plaintiff was a contract--a meeting of minds. If plaintiff were allowed to accept it for a different purpose than that stated by defendants, it would be to allow him to make a contract with defendants without their knowledge or consent."

In the instant case, the statement on the check is clear and complete, and was clearly understood by the plaintiff. Non constat, that he was unwilling to accept it in full settlement when he cashed the check, because he questioned and disputed that it was a complete settlement when the check was first given him.

In Moore v. Accident Assurance Corporation, 173 N.C. on page 538, 92 S.E. 365, Walker, J., says:

"This court has held in numerous cases that when on the face of the check is stated the purpose for which it is given, or the condition of the payment which it represents, the party to whom it is given or sent cannot accept and use it and afterwards repudiate the condition"--citing Kerr v. Sanders, supra; Armstrong v. Lonon, 149 N.C. 434, 63 S.E. 101; Aydlett v. Brown, 153 N.C. 336, 69 S.E. 243.

In the latter case, the court says:

"He will not be permitted to collect the check and repudiate the condition."

Of course, check No. 2 was, until accepted by the plaintiff, a mere offer or proposition from the defendant; it was competent for such offer to be waived or withdrawn, but, when the plaintiff accepted the check with the statement written thereon that it was in full settlement and then cashed the check, he is...