Moore v. Harkins

• Decision Date: 27 December 1919
• Docket Number: 547.
• Parties: MOORE v. HARKINS.
• Court: North Carolina Supreme Court

101 S.E. 564

179 N.C. 167

MOORE v. HARKINS.

No. 547.

Supreme Court of North Carolina

December 27, 1919

Appeal from Superior Court, Buncombe County; Ray, Judge.

Action by Charles A. Moore against Thomas J. Harkins, administrator of H. S. Harkins. From judgment for defendant, plaintiff appeals. Affirmed.

See also, 171 N.C. 696, 89 S.E. 43; 177 N.C. 114, 97 S.E. 824.

In an action on drafts on a United States marshal for sums due given by a deputy marshal, wherein defendant, the deputy marshal's administrator, pleaded an estoppel of record by former judgment, there were no issues of fact requiring submission to a jury.

Craig & Craig, of Asheville, and J. P. Kitchin, of Biltmore, for appellant.

Kingsland Van Winkle, of Asheville, for appellee.

BROWN J.

This action was heard upon the pleadings, records, and exhibits. The complaint, filed May term, 1919, states that the deceased H. S. Harkins, as Deputy Marshal of the United States, gave to the said Moore, for value received, drafts under his seal upon Robert M. Douglas, United States marshal, as the deputy of the said Douglas, in the following words and figures:

For value received, I hereby assign, transfer and set over to Chas. A. Moore all dues to me as deputy United States marshal from the government, and Robert M. Douglas, U.S. marshal for the Western district of North Carolina, on account of actual expenses, fees and allowances as deputy United States marshal, and I direct the same to be paid to the order of the said Chas. A. Moore all that is due to this date. This November 8, 1879.

H. S Harkins. [ Seal.]

For value received, I hereby assign, transfer and set over to Chas A. Moore all dues to me as deputy United States marshal from the government and Robert M. Douglas, U.S. marshal for the Western district of North Carolina, on account of actual expenses, fees and allowances as Deputy United States marshal, and I direct the same to be paid to the order of the said Chas. A. Moore all that is due me from the first of January, 1880, up to the 18th of February, A. D. 1880.

H. S Harkins. [ Seal.]

The complaint alleges that the plaintiff paid to the said Harkins the sum of $1,200 for said drafts on February 16, 1880. The complaint also sets up a cause of action for $120.10 for an account against Robert M. Douglas, marshal, alleged to have been purchased on the 6th day of December, 1880, from H. S Harkins, which said account was duly presented to R. M. Douglas, marshal, and has never been paid. The complaint further alleges that these assignments and account were properly presented to the said Douglas, and were not paid; the said Harkins having no funds in the hands of said Douglas at the time. The defendant pleads the statute of limitations and an estoppel of record by former judgment rendered.

The plaintiff contends that the court erred in refusing to submit the issues to a jury. We are unable to see that there were any issues of fact required to be submitted to a jury, as the estoppel pleaded was a matter of record, the authenticity of which was not disputed. The identical cause was before this court in a case between the same parties at Spring term, 1916, and is reported in 171 N.C. 697, 89 S.E. 43. A copy of the paper sued on is therein set out.

In that case it was held that the right of action had not accrued to the plaintiff, as the plaintiff stated that the drafts were not to be paid until Douglas got the money from the government. That action was therefore dismissed.

Another action was brought by the plaintiff on the 5th day of November, 1914, and tried before Harding, Judge, February term, 1916, in which a judgment of nonsuit was entered, the cause of action being based upon the same drafts or assignments.

Another action was brought on the 24th of February, 1917, based upon the same cause of action, and also upon the account for $120.10. This action was tried April term, 1918, before his honor, Judge Stacy, upon the following issues:

First. Is the defendant indebted to the plaintiff; and, if so, in what amount? Answer: No.

Second. Is the plaintiff's claim barred by the statute of limitations? Answer: No.

The court set aside the verdict of the jury as to the second issue, and ordered judgment against the plaintiff upon the first issue.

His honor charged the jury, after stating the evidence and contentions of the parties as follows:

"If you find as a fact and are satisfied by the greater weight of the evidence that these drafts were given to the plaintiff for value, and that they have not been paid, and they are now due. I charge you it would be your duty to answer the first issue Yes, and in the sum of $1,400, with interest from February 18, 1880; but if you do not find that these drafts were given for value, it would be your duty to answer the first issue No."

...