Sugg v. Watson

• Decision Date: 29 October 1888
• Court: North Carolina Supreme Court
• Parties: Sugg v. Watson.

2 S.E. 709

(101 N.C. 188)

Sugg

v.Watson.

Supreme Court of North Carolina.

October 29, 1888.

Appeal—Review—Weight of Evidence.

In an action on a note where there was some evidence, without objection, that a payment was made which would take it out of the statute of limitations, and no instructions were asked in regard to it, the verdict for plaintiff cannot be set aside as against the weight of evidence.

Appeal from superior court, Orange county; Shepherd, Judge. J W. Graham and John Manning, for appellant.

A. W Graham, for appellee.

Davis, J. On the 20th of November, 1886, the plaintiff instituted two actions against the defendant in a court of a justice of the peace, —one on a note for $250, dated September 25, 1868, credited by $125, May 22, 1869; the other on a bond for $180, dated February 25, 1871. There was a credit of $5 on each note, as hereinafter set out. The justice of the peace gave judgment in each action for the plaintiff, and the defendant appealed. The following is the case on appeal: By order of his honor, the two cases were consolidated. Defendant admitted the execution of the notes, relied upon the statute of limitations, and the only issue submitted to the jury was, "Are the notes sued upon barred by the statute of limitations?" The plaintiff was introduced as a witness in his own behalf, and testified: "I am a brother-in-law of defendant. I went to him, and told him he must pay me some money on these notes. He ran his hand into his pocket, and pulled out $10 and handed me. I said, * This is not enough; I want more than this.' Defendant said, 'That is all I have now.' He then walked into the house, and I followed him, and said, 'John, we must have a settlement; this has been standing long enough.' He did not reply to me. I then entered a credit of $5 on each of the notes. A few days after this I sent my son to defendant to tell him I wanted to have the notes closed up. He sent me word it was out of the question; that he couldn't pay me. I then sued him. Defendant did not owe me any other debt. I had done work for him in my shop, but I always made him pay cash, as I had so much trouble in getting him to pay these notes." On cross-examination plaintiff stated that this transaction took place in July, 1886; that he said to defendant: " ' John, I want you to pay me some money; I want some.' He then paid me the $10, and I told him I wanted some more, and he said he didn't have it. Watson afterwards went into the house, and I followed him, and told him we must have a settlement. I had the notes with me, and put the credits on them as soon as I got home, where I bad pen and ink. I entered $5.00 on each note, to bring them in date. I kept a wagon-shop and frequently did work for Watson, but he paid for it, and owed me nothing but those notes when he paid me the $10. This was shortly before I went to a sale at Lawrence's." John H. Watson, introduced as a witness in his own behalf, testified: "Was sitting on my hotel porch, with W. Sugg, when plaintiff came, and said he was going to Lawrence's sale next day, and wanted me to let him have a little money to buy him some corn; that he didn't have it. I went into the house, and got the $10 and gave him. Not a word was said about note, debt, settlement, or anything of the kind. He asked me if that was all 1 could let him have, and 1 said, ' Yes.' I did not authorize him to enter any credit on the notes; I had forgotten he had them. He did shop-work for me, and I was in the habit of paying him from time to time. I thought I owed him for shop-work at the time." On cross-examination defendant testified he would pay plaintiff for shop-work sometimes, and sometimes he did not have it. "I owed him nothing but a little shop account; I don't know how...