Sw. Nat. Bank v. Justice

• Decision Date: 06 December 1911
• Parties: SOUTHWEST NAT. BANK v. JUSTICE.
• Court: North Carolina Supreme Court

72 S.E. 1016

157 N.c. 373

SOUTHWEST NAT. BANK

v.JUSTICE.

Supreme Court of North Carolina.

Dec. 6, 1911.

1. Compromise and Settlement (§ 18^*)—Acceptance of Tender—Effect.

Plaintiff's bank, holding a note against defendant for $1,400, on which there was a credit of $168, sent the same to the M. bank for collection. On presentation, defendant maker claimed that the note should only have been for $500, and offered to pay $432 as the balance due on that basis, deducting a credit of $168, giving that amount to the cashier of the M. bank, to be tendered in full settlement of the note. The cashier, having entered the same as a credit, sent the amount of the payment and the note to plaintiff, accompanied by a letter, explaining defendant's claim, and stating that the $432 was delivered to be tendered to plaintiff to cover the $500 and interest, and that if plaintiff did not care to accept the remittance could be returned to the M. bank; that the drawers stated they would stand suit before making any further settlement. Plaintiff bank made no reply, and without returning the $432 sued to recover the balance of $1,400. Held, that the letter showed that the money was tendered in full settlement of the claim, and that plaintiff bank could not retain the same and still claim a balance due on the note.

[Ed. Note.—For other cases, see Compromise and Settlement, Cent. Dig. §§ 75-82; Dec. Dig. § 18.*]

2. Principal and Agent (§ 171*)—Authority—Ratification of Acts—Retention of Benefits.

Where plaintiff bank sent a note to another bank for collection, and the latter received less than the face of the note, to be tendered plaintiff in full settlement, plaintiff could not accept and retain the money so paid to his agent, and repudiate the condition on which it was paid in full settlement of the claim.

[Ed. Note.—For other cases, see Principal and Agent, Cent. Dig. §§ 644-655; Dec. Dig. § 171.*]

Appeal from Superior Court, Mitchell County; Biggs, Judge.

Action by Southwest National Bank against J. G. Justice to recover an alleged balance on a note for $1,400. On the court's intimation that he would direct a verdict for defendant, plaintiff excepted, submitted to a nonsuit, and appealed. Affirmed.

S. J. Ervin, W. C. Newland, and Chas. E. Greene, for appellant.

J. W. Ragland, forappellee.

HOKE, J. [1] Plaintiff bank, holding a note for $1,400 on defendant, purporting to be due August 1, 1909, with interest from April 23, 1906, payable annually, and on which there was a credit of $168, of date August 11, 1908, sent the same for collection to the Mitchell County Bank of Bakersvill, N. C., about two weeks before same was due. At maturity the cashier of the latter bank presented same for payment, which was refused, and the note was duly protested and returned to plaintiff. Thereupon the note was again sent by plaintiff to the Mitchell County Bank for collection, was again presented, when defendant claimed that the note should have been for only $500, and not $1,400, and offered to pay $432 as the balance due on that basis, deducting the credit of $168 by reason of the former payment, and gave that amount to the cashier, to be tendered in full settlement of the note. The cashier, having entered this as a credit on the note, sent the amount of the payment and this note to plaintiff, accompanied by the following letter: "Gentlemen: We are returning herewith P. M. Brown et al.'s note for 1, 400 dollars and interest enclosed to us in your letter of August 5th and hand you herewith remittance of $432.00 which we have collected and credited on the back of note. The drawers of this paper claim that the note should have been for $500.00 instead of $1,400.00 and the $432.00, which they ask that we tender you is to cover the $500.00 and interest for...