Young v. Alford

• Decision Date: 25 February 1896
• Citation: 23 S.E. 973,118 N.C. 215
• Parties: YOUNG v. ALFORD et al.
• Court: North Carolina Supreme Court

23 S.E. 973

118 N.C. 215

YOUNG v. ALFORD et al.

Supreme Court of North Carolina

February 25, 1896

Appeal from superior court, Franklin county; Coble, Judge.

Action by Mrs. Winnifred Young against J. R. Alford and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Where the evidence of a material fact is slight, but not wholly wanting, the safer rule is to submit the issue to a jury.

F. S Spruill, for appellants.

C. M Cooke and T. W. Bickett, for appellee.

FURCHES J.

This is a civil action for the recovery of a debt evidenced by three notes secured by mortgage, and for a foreclosure of the mortgage. The execution of the notes and mortgage, and their nonpayment, are admitted; but defendant pleads and relies on the statute of limitations as a bar to plaintiff's action. The notes are under seal, and were made in 1874, and this action was commenced in the spring of 1892. There had been several payments made and indorsed on these notes, but none of them had been made within 10 years before the commencement of the action, except an indorsed payment on each one of them of 25 cents, bearing date the 5th of November, 1890. The defendant contends that his intestate made no such payment as the last mentioned, and this is the issue. If such payments were made the plaintiff is entitled to judgment, and if not made the defendant is entitled to judgment.

It was in evidence that the plaintiff and defendant's intestate were brother and sister, and that plaintiff is quite an old lady, and that these indorsements of 25 cents are in the handwriting of one J. H. Alford, a son of plaintiff, who was acting as her agent at the time they bear date. Upon this testimony the plaintiff offered these indorsements in evidence. Defendant objected, and his objection was sustained. The plaintiff then offered as a witness Mrs. S. B Harris, who testified as follows: "I knew Simon Alford. Don't remember when he died. It has been about three years ago. He was her uncle. He was in the habit of visiting at their house. The last time he visited was the year he died. Don't remember how long before he died. At the last time he had a conversation with witness' mother about losing his sheep and horses. Talked about crediting some brandy. Spoke of the notes. He said, 'Credit the brandy on his note. That would be the only way it would ever be paid.' He brought it up, talking about paying them. Said, 'Send down there and get brandy, and credit on his notes. It would be the only way he could ever pay it."' Plaintiff then introduced J. H. Harris, who testified as follows: "I am a son-in-law of plaintiff. Knew Simon Alford. Mrs. Young is at home. Saw Alford at Mrs. Winnie Young's, not long before he died. Simon had been over to the still. Witness stayed with Mrs. Young about three years after he was married. Simon Alford was there. Winnie said she wanted brandy, but she didn't have the money, and Simon said, 'Why don't you send down and get some brandy from him?' She said she didn't have the money, and he said he owed her more than he would ever pay her. 'You send down and get the brandy, and let that go on.' He didn't say on what. He said he owed her more than he would ever pay her in his lifetime, but there would be enough left after he was dead to pay her. She said she would never trouble him as long as he lived. Went to Simon's for Winnie, after Simon got sick. When she got ready to start, she got a quart of brandy, took out some money, and said she thought she would pay him for the brandy, and he said, 'No'; that he owed her more than he would ever pay her, and to let that go on. She said she thought he needed some money. Brandy was worth 75 cents per quart." D. E. Harris testified that the plaintiff, Winnifred Young, had been feeble for a good many years. The court then allowed these indorsements to be read to the jury, and the defendant excepted. These notes being barred by the statute, they could only be revived by a written acknowledgment, or a payment made on them by defendant's intestate. There is no claim that he revived them in writing; and the question is, did he do so by making a payment in 1890, as alleged by plaintiff? The jury have found that he did, and this ends the matter, unless there was error committed by the court on the trial. The defendant says there was, as is pointed out by his exceptions.

Defendant's first prayer for instructions asked the court to charge that, where the statute of limitations is pleaded, it devolves on the plaintiff to show that his action was not barred. This prayer was given. In defendant's second prayer for instruction, he asked the court to charge "that, unless the jury are satisfied that defendant's intestate intended that the alleged payments, if he made them, should renew his obligation upon the bonds, they will return a verdict for the defendant." This prayer was refused, and defendant excepted. In this there was no error. If the payment was made, and nothing else appeared, the law presumed the intention; and it was not necessary for the plaintiff to prove what the law presumed from the fact of payment. Woodhouse v. Simmons, 73 N.C. 30; Williams v. Alexander, 6 Jones (N. C.) 137.

In defendant's third prayer, he asked the court to instruct the jury as follows: "It is not the mere indorsement of a credit upon the notes by the holder which will have the effect of reviving the liability, but an actual payment, made and received as such; and, unless the jury believe that Simon Alford did let plaintiff have the brandy, intending it as a payment on these notes, and that plaintiff received it, intending it as such payment, and that the brandy was an actual payment, they will return a verdict for the defendant." This instruction was given, but we bring it forward as a part of his honor's charge. Defendant's fourth prayer for instructions was as follows: "In order to make specific articles a payment, they must be received as payments by the holder of the note, and intended as payments by the maker, or by subsequent agreement between the parties applied as such." This instruction was given, but we bring it forward, for the same reason that we brought forward the third, as a part of his honor's charge.

Defendant's fifth prayer was as follows: "A payment, if made at all can only be made by the debtor; and, in order to entitle the plaintiff to recover, she must show, to the satisfaction of the jury, that Simon Alford authorized her to estimate the value of the brandy herself, and to divide it into three parts, in order to credit the bonds with 25 cents each, with the view of bringing them back into date, and that this act was the mutual act of the parties, and not the act solely of the plaintiff; and, unless the jury do so find the facts, they will...