Robinson v. Threadgill

• Decision Date: 31 December 1851
• Citation: 13 Ired. 39,35 N.C. 39
• Court: North Carolina Supreme Court
• Parties: ANANIAS ROBINSON v. GIDEON B. THREADGILL.

13 Ired. 39

35 N.C. 39

ANANIAS ROBINSON

v.GIDEON B. THREADGILL.

Supreme Court of North Carolina.

December Term, 1851.

Although there be a special contract to do, or not to do, a particular thing, a party is not bound to resort to it, to recover damages for a breach, but may declare in tort and say that the defendant has neglected to perform his duty.

In the case of a bailment, the bare being trusted with another's goods, is a sufficient consideration for the engagement, if the bailee once enter upon the trust and takes the goods into his possession. As where a man undertakes to collect notes for another, without mentioning any consideration, and takes the notes for that purpose, there is a sufficient legal consideration for the engagement.

Appeal from the Superior Court of Law of Montgomery County, at the Fall Term, 1851, his Honor Judge BAILEY presiding.

The case is stated in the opinion of the Court.

Strange, for the plaintiff .

Winston and Mendenhall, for the defendant , cited the following authorities, 2 Kent's Com. 568, Thorne v D ees, 4 John. R. 84 and 2 Chit. Plead. 154th page.

NASH, J.

This was an action on the case.

The plaintiff put into the hands of the defendant two notes on John H. Mask, of Anson county, which the defendant promised to collect or return. The defendant gave the plaintiff a receipt in words and figures, as follows, to wit: “Wadesboro', Sept. 17th, 1845, Received of A. Robinson the following notes to collect or return, as an officer, against John H. Mask, for fifteen dollars, with interest from 13th day of January, 1843, with a credit of two dollars paid the 15th of Sept. 1842: also one against John H. Mask, for $13 65, with interest from 1st of January, 1844.

G. B. THREADGILL, D. S.”

The plaintiff introduced evidence tending to show, that Mask had property sufficient to satisfy the claims put into the hands of the defendant, if ordinary diligence had been used. The defendant's counsel objected to the recovery, upon the ground that it had not been shown that the defendant was an officer, nor was there any evidence to show that he was deputy sheriff. The plaintiff's counsel insisted that he had a right to recover against him as an individual. The Court charged the jury that it was the duty of the defendant, when he undertook to collect the notes put into his hands by the plaintiff, to use ordinary diligence, such diligence as an ordinarily prudent man would exercise in the collection of his own money, that if he neglected to do this, and the plaintiff by his negligence had lost his debt, they should find a verdict for the plaintiff. Under this instruction the jury found verdict for the plaintiff.

The defendant obtained a rule for a new trial, upon the ground that there was evidence from the receipt itself that the defendant was not only an officer, but that he was deputy sheriff, and if so, that the plaintiff could not recover against him, but must sue his principal.

This objection was not made upon the trial, but, upon the contrary, it was urged that there was no evidence that he was deputy sheriff, nor was there any instruction prayed that there was evidence to be submitted to the jury.

There was no evidence that the defendant was deputy sheriff, other than the receipt.

With the motion for a new trial, we have nothing to do. In this Court two objections growing out of the record, have been pressed upon us. The action is in case. The plaintiff placed in the defendant's hands several notes, for which he gave a receipt “to collect or return,” neither of...