Rudasill v. Falls
| Decision Date | 28 February 1885 |
| Citation | 92 N.C. 222 |
| Court | North Carolina Supreme Court |
| Parties | M. E. RUDASILL v. J. Z. FALLS. |
OPINION TEXT STARTS HERE
This was a CIVIL ACTION tried before MacRae, Judge, and a jury at Spring Term, 1884, of CLEVELAND Superior Court.
The facts appear in the opinion.
There was a verdict and judgment for the plaintiff, and the defendant appealed.
Messrs. W. J. Montgomery and Gidney & Webb for the plaintiff .
Messrs. Hoke & Hoke and R. McBrayer for the defendant .
The plaintiff, the defendant, and one Green became co-sureties on a note by the firm of Jenkins, Homesley & Oates, as principals, to A. V. Falls, in the sum of sixteen hundred dollars, the amount due on which, the said Green becoming insolvent, has been collected in equal parts out of the other sureties. The present action is to recover the moiety paid by the plaintiff from the defendant, upon an allegation that the latter has received from their principals property in value sufficient to discharge the entire debt.
The plaintiff testified that upon the failure of the co-partner, Jenkins, and the death of Oates, the management of the factory, for conducting the business of which the partnership had been formed, devolved upon Homesley, who, in an interview with the several sureties and one E. Black, expressed a desire to provide for his sureties and said he had the means of doing so, and if they did not get the property some one else would, but that he wished to continue running the factory. That the plaintiff and Green declined to enter into such an arrangement, and, therefore, it was agreed that the defendant, representing all the sureties, should go to the factory and take a bill of sale of the property for their indemnity to be appropriated to the debt.
That some few days after, the defendant, in answer to an inquiry as to what had been done, said to the plaintiff, “I have got a bill of sale for two thousand dollars worth of property, and it ought to pay a sixteen hundred dollar debt,” adding that he and Black had leased the factory from Homesley, and were going to run it, and that the latter would appropriate the profits to the discharge of the debt due to Falls, the creditor.
That two months later the defendant, in reply to the plaintiff's question whether any part of the debt had been paid, said it had not, and if not paid soon, the defendant would sell the property and apply the proceeds to it. The plaintiff expressed the wish that this should be done as he did not want to lose.
That a month after this conversation, the factory was placed in the hands of a receiver, and Homesley turned out of possession.
That the defendant has since refused to refund the money paid by the plaintiff on the ground that he and Green declined to enter into the arrangement made on behalf of all the sureties for the continuance of the operations of the factory under the lease.
The defendant exhibited in evidence two papers, bearing the same date and executed at the same time, in one of which, signed by Falls, Black & Co., it is certified that they have bought of Jenkins & Homesley, surviving partners, certain enumerated articles, being all the personal property belonging to the said surviving partners, for the consideration of $2,000, and signed??
FALLS, BLACK & CO.
The other writing is an agreement entered into at the same time, between Falls, Black & Co., of the first part, and Jenkins & Homesley, of the other part, wherein is recited the renting by the former, from the other party, of the factory for a year, and the employment of the latter as superintendents and managers, and the placing in their hands $600 in money and the stock of goods and mules, wagons, &c., to be used in conducting the business, and to be returned at the end of the time, with an agreement that no debts are to be made nor contracts entered into in the name of the lessees for money borrowed.
The defendant's testimony in antagonism to that of the plaintiff, is in substance this: That the proposition made by Homesley was, that if Black, Green, the...
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Hooper v. Merchants' Bank & Trust Co.
...Co., 152 N.C. 142, 67 S.E. 253, 50 L. R. A. (N. S.) 581, 136 Am. St. Rep. 821; Christian v. Yarborough, 124 N.C. 72, 32 S.E. 383; Rudasill v. Falls, 92 N.C. 226; Crawford Barkley, 18 Ala. 270; Hodnett v. Tatum, 9 Ga. 70; Bank v. Hanmer, 14 Mich. 208; Coleman v. Stark, 1 Or. 115; Norwood v. ......
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Dobias v. White, 171
...her action. She cannot claim the benefits without assuming the burdens. Herndon v. Durham & S. R. Co., 161 N.C. 650, 77 S.E. 683; Rudasill v. Falls, 92 N.C. 222. Simple justice and fair play deny her the right, under these circumstances, to disavow his agency. Indeed, she did not attempt to......
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Hooper v. Merch.S' Bank &. Trust Co
...419; Elliott v. Power Co., 190 N. C. 62, 128 S. E. 730. When issues meet this test they satisfy all the requirements of Rudasill v. Falls, 92 N. C. 222, and Gordon v. Collett, 104 N. C. 381, 10 S. E. 564. The question of voluntary payment by the plaintiff did not arise. The payment was made......
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Baker v. Malan Const. Corp., 19
...401] are mandatory in the requirement that an issue or issues of fact, raised by the pleadings shall be submitted to the jury. Rudasill v. Falls, 92 N.C. 222. But section 400, in express terms, distinguishes issues of fact from mere inquiries of damages by providing that 'Every issue of fac......