State Nat. Bank v. Others

• Decision Date: 07 March 1887
• Citation: 1 S.E. 459,96 N.C. 118
• Court: North Carolina Supreme Court
• Parties: State Nat. Bank v. Hareis and others.

1 S.E. 459

(96 N.C. 118)

State Nat. Bank

v.Hareis and others.

Supreme Court of North Carolina.

March 7, 1887

Limitations—Part Payment by Surety—Agreement to Give Credit.

In an action on a promissory note by the payee, A., and one to whom A. had transferred it as collateral security for a loan, against two sureties on the note, it appeared that A. had agreed with one of the sureties, B., that a payment made by B. in satisfaction of another obligation upon which A. was primarily and B. secondarily liable, should go in part payment of the note, and be credited on it. Held, that such agreement, although the credit was never entered on the note, constituted a part payment sufficient to take away the bar of the statute of limitations.

Appeal from superior court, Wake county.

Battle dt Mordecai and Haywood & Haywood, for plaintiff.

Argo dt Wilder, for defendants.

Smith, C. J. This action is upon a bond or promissory note under seal made by the defendant James M. Harris, principal, and the other defendants his sureties, to John Gatling, one of the plaintiffs, for $400, due December 15, 1881, and deposited with the plaintiff bank as collateral security for money loaned. The suit was commenced on August 1, 1885, and the defense mainly relied on and brought up in the appeal is the bar of the statute of limitations pleaded by the sureties. To rebut this the plaintiff alleges a partial payment of $286.02 to have been made by the defendant Bridgers on or about March 5, 1882, under section 172 of the Code. The testimony upon the point was as follows: The plaintiff Gatling gave his note for $262.30, for value, to one T. V. Hill, who indorsed it to the defendant Bridgers, by whom it was again indorsed to Norris, Wyatt & Taylor, who broughtsuit on the note against the maker and indorser Bridgers, and at August term, 1883, recovered judgment against the latter alone. Execution issued thereon, and on March 5, 1884, was satisfied by payment in full by Bridgers. Thereupon it was agreed between him and Gatling that the amount so paid should go and be appropriated as a part payment of the note now in suit, and be credited thereon. This credit was not in fact so entered, though repeatedly demanded, and with assurances that it should be done. The note sued on, though payable to Gatling personally, was the property of Annie M. Parker, of whom the former was attorney in law and fact until the winter of 1884-85, but this was not known to the sureties. The said Annie M. and her husband have been allowed to intervene in the action, and assert her claim to the surety.

The second article of the complaint alleges the payment by Bridgers on March 5, 1884, of $286.02, and only the residue of the debt is demanded. The answer of Bridgers denies that, upon the facts, any payment has been made to interrupt the running of the statute, and insists upon its protection. Of the three issues submitted to the jury two responses declaring the said Annie M. to be the owner of the note, and the defendants W. S. Harris and Bridgers to be sureties, were made by consent; and the remaining one, did defendant T. P. Bridgers pay on said bond $286.02, or any other sum, on or about fifth of March, 1884? was answered in the affirmative. The defendants insisted there was no evidence to sustain an affirmative binding upon this issue.

The instruction was in these words: The court charged the jury that if they believe it was understood and agreed between Gatling and Bridgers, prior to fifteenth of December, 1884, that the amount due by Gatling to Bridgers should constitute a payment on the note in suit, they should find the second issue in the affirmative, and they should consider all the facts and circumstances in evidence in coming to a conclusion; that...