Moore v. Fuller

• Decision Date: 30 June 1855
• Citation: 47 N.C. 205,2 Jones 205
• Court: North Carolina Supreme Court
• Parties: THOMAS C. MOORE v. HENRY C. FULLER.

2 Jones (NC) 205

47 N.C. 205

THOMAS C. MOORE

v.HENRY C. FULLER.

Supreme Court of North Carolina.

June Term, 1855.

Interest, being an incident to a bond, cannot be recovered in a separate action for it alone after the principal of the bond has been paid.

THIS was an ACTION of DEBT on a bond, brought by appeal from a justice of the peace to the Superior Court of Rockingham, and there tried before his Honor Judge DICK, at the Spring Term, 1855, of that Court.

The bond declared on was for $552, due the first day of May, 1852, on the back of which was endorsed a credit in the following words and figures, viz: “September 7th, 1852. Rec'd. of the within note five hundred and fifty dollars of the within note.” The plaintiff introduced a witness who testified that the parties came to his house on the day of the date of the above credit, and the bond and money were laid down before him, and he was requested to count the money and examine it. He did so, and found the amount to correspond with the principal. The plaintiff then called on the defendant for the interest, which he refused to pay. After some conversation on the subject, it was agreed between the parties that the principal of the bond should be paid, and that they should refer the question to arbitration, whether defendant was liable to pay interest. Subsequently, one Ellington was agreed on as the arbitrator, who gave his award that the defendant was liable for the interest. The defendant still refusing to pay, the plaintiff brought this suit by warrant.

The defendant's counsel asked the Court to charge the jury, that, in this action, if they were satisfied that at the date of the credit the defendant paid, and the plaintiff accepted the said sum of $550 in full of the principal of the said bond, he, the plaintiff, could not recover anything for interest, whether the same accrued before or after the payment of the principal.

His Honor declined giving the charge asked for, but instructed the jury that on these facts the plaintiff was entitled to recover the interest that had accrued before the plaintiff received the principal. Defendant excepted, because his Honor refused to give the instruction asked, and for error in the instruction given.

Verdict for the plaintiff. Judgment and appeal.

Morehead, for the plaintiff .

T. Ruffin, Jr., and J. H. Bryan, for defendant .

NASH, C. J.

In the charge of his Honor, we think there is error, and that he ought to have charged as requested by the defendant's counsel. The defendant was indebted to the plaintiff by a bond for $550, which, after maturity, he paid to the plaintiff in discharge of the principal. The action is in debt, and the declaration on the bond. The action cannot be sustained.

The general principle is, that where the principal subject of a claim is extinguished by the act of the plaintiff, or of the parties, all its incidents go with it. Thus, in an action of...