Shaw v. McNeill

• Decision Date: 31 October 1886
• Citation: 95 N.C. 535
• Court: North Carolina Supreme Court
• Parties: SHAW BROTHERS v. NEILL MCNEILL.

95 N.C. 535

SHAW BROTHERS

v.NEILL MCNEILL.

Supreme Court of North Carolina.

October Term, 1886.

This was a CIVIL ACTION, tried before Boykin, Judge, and a jury, at January Term, 1886, of the Superior Court of ROBESON County, on an appeal from a justice of the peace.

The complaint of plaintiff was as follows, to-wit:

That the defendant is indebted to him in the sum of $90.00, due by defendant's endorsement of a draft by E. L. McCormac to N. McNeill, which is in the following words and figures, viz:

+---------------------------------------+
                ¦$90.00¦SHOE HEEL, N. C., Dec. 16, 1884.¦
                +---------------------------------------+
                

+--------------------------------------------------------------------+
                ¦No Protest.¦)¦At sight, pay to the order of Neill McNeill, Esq.,    ¦
                +-----------+-+------------------------------------------------------¦
                ¦           ¦)¦ninety dollars, value received, and charge the same to¦
                +-----------+-+------------------------------------------------------¦
                ¦           ¦)¦account of                                            ¦
                +-----------+-+------------------------------------------------------¦
                ¦           ¦)¦E. L. MCCORMAC.                                       ¦
                +--------------------------------------------------------------------+
                

To Messrs. Kerchner & Calder Bros., Wilmington, N. C.

With the endorsement:

“Pay to the order of Shaw Bros. NEILL MCNEILL.”

The defendant denies that he was indebted to the plaintiff as claimed; denies that payment was demanded of and refused by the drawee; and pleaded further, that if said draft was not paid, that reasonable notice of its non-acceptance and non-payment was not given to him by the drawees, the present plaintiffs, or their agents.

The plaintiffs offer evidence to show that they were purchasers of the draft from McNeill, the payee, for value; that he endorsed the same to them; that the draft was presented to Kerchner & Calder Bros., abount the 2d or 3d of January, 1885, and payment was refused; that about the same time in 1885, verbal notice was given to McNeill of the fact of the non-payment of the draft by Kerchner & Calder Bros., at which time the defendant said to plaintiff that he would lose some money on account of the transaction, and asked him what he would take for it.Plaintiff replied that rather than go into a lawsuit, he would take sixty dollars, which the defendant agreed to give, but did not do it.

There were several issues submitted to the jury, and one the series numbered 3, was: “Did the plaintiffs exercise ordinary care in the collection of said draft?”

The defendant asked his Honor to charge the jury, that on the whole evidence the plaintiffs were not entitled to recover, for if payment of the draft was refused, they had not notified defendant of it in a reasonable time.This instruction his Honor declined to give, and charged the jury as follows: “That it was incumbent on plaintiffs to notify defendant that the draft had been presented and payment refused, but that if the defendant had waived this right, they need not consider it.That in determining whether or not the defendant had waived it, they might consider the words “no protest” on the margin of draft, his language and conduct when Shaw informed him about the non-payment in February, and also his offer to pay $60.00.That if defendant had offered to pay $60.00, as alleged by Shaw, it amounted to a waiver.”

The jury found all the issues for the plaintiffs.Defendant moved for a new trial, alleging as error:

1.The submission of the third issue, which was not raised by the pleadings, was irrelevant and improper.

2.Refusal to charge the jury as requested by defendant.

3.For error in the charge as given as to waiver of notice, in charging the jury that they might consider the words “No protest” on the draft; the language and conduct of defendant in February, and his offer to pay $60.00, when there was no evidence that he ever waived or intended to waive notice, and that the evidence only tended to prove that the offer of $60.00 was an offer of compromise, accepted by plaintiffs, and their action, if any they had, should have been for the $60.00.

There was a judgment for the plaintiffs, and the defendant appealed.

Mr. Thos. H. Sutton, for the plaintiffs .

Mr. C. C. Lyon, for the defendant.

ASHE, J., (after stating the facts).

The defendant took three exceptions on the trial of this case, none of which are tenable.

First.For that the third issue submitted to the jury was not raised by the pleading.

But it will be seen by reference to the answer of the defendant, that the question of diligence involved in the issue, was expressly raised in the answer, by pleading that reasonable notice of the acceptance and non-payment of the draft had not been given by the plaintiffs to the defendant.

Secondly.For that his Honor refused to give the charges as requested by the defendant, which was in substance, that the plaintiffs had not notified the defendant in a reasonable time that the drawee had refused the payment of the draft.There was no error in this, for the reason, as we will hereafter show, that the defendant had...