Millhiser v. Marr

• Decision Date: 23 May 1901
• Parties: MILLHISER et al. v. MARR et al.
• Court: North Carolina Supreme Court

38 S.E. 887

128 N.C. 318

MILLHISER et al.

v.MARR et al.

Supreme Court of North Carolina.

May 23, 1901.

PAYMENT—MONEY—APPROPRIATION—ACCEPTANCE.

Where plaintiffs sent an account against defendant to an attorney for collection, and in the settlement of another controversy money belonging to the defendant came into the possession of the attorney, and was deposited in the bank in his name, and it was agreed between the attorney and defendant that the attorney should send his own check to plaintiffs in payment of the account, it was error to charge that the agreement did not constitute payment, since the money was appropriated to the debt, and accepted by plaintiffs' authorized agent.

Appeal from superior court. Swain county; Allen, Judge.

Action by M. Millhiser & Co. against L. Lee Marr & Co. and others. Prom a judgment in favor of plaintiffs, defendants appeal. Reversed.

This action was brought to recover the balance on an account alleged to be due plaintiffs by defendants. It was in evidence and uncontradicted that some time in the year 1896 a statement of the account against defendants, and in favor of plaintiffs, was sent to one R. L. Leatherwood, an attorney, for collection. It was further in evidence that W. T. Conley was the authorized agent of M. B. Conley & Co., who were the members of, or successors to, the firm of L. Lee Marr & Co. There was evidence tending to prove that, after receiving the account of Millhiser & Co. against Marr & Co., and while the same was in his hands for collection, the said Leatherwood was attorney for one W. W. Ladd, Jr., who was defendant in certain actions for the enforcement of certain liens filed against the property of said Ladd, and that under and by virtue of a certain agreement of compromise, entered into between the said Ladd and the lienors for the payment, of the liens so filed, a certain sum of money, to wit, $1,000, was placed in bank to the credit of said Leatherwood for the purpose of carrying out the terms of said agreement. There was also evidence, uncontroverted, showing that certain of the liens so filed as above stated were assigned by the lienors to W. T. Conley. W. T. Conley testified that Leatherwood came to him and asked him to release the lumber upon which were the liens assigned to him, stating that he (Leatherwood) would pay him (Conley) the amount of said liens, as he had the money deposited to his credit for that purpose. Witness further testified that he did allow the said Leatherwood to remove certain of the liens assigned to him, with the express understanding that the money due thereon should be applied to the payment of the Millhiser indebtedness; that that amount of liens so removed was in excess of said indebtedness to said Millhiser & Co.; that witness Conley immediately thereafter went to the office of said attorney, Leatherwood, and requested payment for said liens, telling him (Leatherwood) at the same time he wished to apply same to settle the Millhiser account, then in his (Leatherwood's) hands; whereupon he (Conley) was told by Leatherwood that the money was in bank to his credit, and that instead of giving him (Conley) a check, and letting him indorse...