Scott v. Bryan

• Decision Date: 30 June 1875
• Court: North Carolina Supreme Court
• Parties: JOHN W. SCOTT v. ELIAS BRYAN.

73 N.C. 582

JOHN W. SCOTT

v.ELIAS BRYAN.

Supreme Court of North Carolina.

June Term, 1875.

A promise to pay the debt of another is not binding on the party making the promise, unless the same be in writing.

To prove a disputed fact, the best evidence of which the nature of the case admits must be produced. The best evidence of a judgmeet is the record of the same, or a transcript thereof.

( Britton v. Thrailkill, 5 Jones 329, cited and approved.)

CIVIL ACTION, for the recovery of money only, tried before Kerr, J., at Fall Term, 1874, CHATHAM Superior Court.

The action was referred by consent and heard by his Honor upon exceptions to the report of the referee, which was substantially as follows: I find that J. W. Scott was a merchant in the town of Haywood, in Chatham county, from 1855 to 1869, and the defendant was one of his customers during that period, and that the plaintiff sold goods to the defendant and his family, and charged them to the defendant, and kept an account of what he sold, and also of what he received from the defendant, crediting the defendant with the money received from him and the services rendered by him.

The defendant produced an account against the plaintiff for a few articles alleged to have been sold to plaintiff, and also for the board of the brother of the plaintiff for two months. As to these demands each party pleaded the statute of limitations, and it was held that the statute barred both claims. I also find that the plaintiff had charged the defendant with an account of $228.83 against B. R. Bryant, who was a ward of the defendant. The defendant was the father of B. R. Bryant, and in the year 1866 as guardian of his said ward, assumed the payment of the account as stated by the defendant, but, as stated by the plaintiff, he assumed it individually, although the account was for goods sold prior to the 17th of April, 1861, I hold that it is not barred by the statute of limitations, as it became the debt of the defendant within the time beyond which the statute does not apply; the defendant having also assumed the payment of the same within three years from the date of said account. I have therefore charged the defendant with the items on the account of the plaintiff after the 17th day of April, 1861, with interest. I also charge him with the B. R. Bryan item of $228.83, with interest.

The report of the referee is voluminous and contains a great many facts not pertinent to the case as decided. The defendant excepted to the ruling of the referee, charging him with the item of $228.83, and also to the admission of the testimony of the plaintiff with regard to a counter-claim, all of which is fully stated in the opinion of the Court.

The exceptions were overruled and the defendant appealed.

B. I. Howze and Tourgee & Gregory, for the appellant .

John Manniny, contra .

RODMAN, J.

The defendant suggested a diminution of the record, in that the record of a judgment recovered by Scott against one Elliott, which is referred to in the case settled between the present parties, does not accompany the case, and moved for a certiorari to bring it up as a part of the case. This was opposed by the plaintiff, and we are of opinion that the writ should not be granted. The reasons for this opinion will sufficiently appear from our opinion on the second exception to the judgment of the Court below.

The first exception of the defendant is that the referee erroneously charged him with a certain debt of $228.83, which B. R. Bryan, a son of the defendant, had contracted with the plaintiff. The son, at the time of contracting the debt, was a minor and the defendant was his guardian. On a certain occasion the son had some cotton; whether it was the product of his own land or of the defendant's, does not appear and is not material. Plaintiff endeavored to get the son to consent to his taking the cotton in payment of the debt. This the son refused to do except with his father's consent. The father refused to consent, but said he would pay the account. It is immaterial whether he said he would pay it as guardian, that is, out of the son's property, or not. An unqualified promise to pay out of the son's property would be as binding as a promise to pay individually, and would amount to the same thing. But whatever the form of the promise was, it had no legal force, as it was a promise to pay the debt of another, and was not in writing. Britton v. Thrailkill, 5 Jones, 329.

In the present case the debt was originally, and continued to be, that of the son. The promise of an infant to pay an account for goods sold to him, (not being necessaries,) though voidable, is not void. 1 Pars. Cont. 295.

The promise of the father was superadded to the liability of the son. A father or guardian is under no legal liability to pay debts contracted without authority from him by his son or ward except under special circumstances which did not exist in this case. 1 Pars. Cont. 304; Hunt v. Thompson, 3 Scam. 180; Varney v. Young, 11 Vt. 258; Kelly v. Davis, 49 N. H. 187; Robinson v. Weeks, 56 Maine 102; Shelton v. Springett, 11 C. B. 452, (73 E. C. L. R;) Rolfe v. Abbott, 6 E. & P. 286, (25 E. C. L. R.)

We concur in the judgment of his Honor on this exception. The defendant is not liable.

The second exception of defendant is set forth as follows: “That the referee erred in admitting the testimony of the plaintiff, as follows: ...