Armstrong v. . Lonon , 149 N.C. 434 ( 1908 )

In this case there was evidence of an item of account between plaintiff and defendant, amounting to the sum in controversy, and defendant sent check "in full of account," not inclusive of the amount claimed by plaintiff, which plaintiff received, endorsed and kept the money on: Held, evidence sufficient, in this case, of the intent of full payment and discharge to go to the jury. The action is brought to recover a balance due on verified account of $49.68.

The defendant pleaded a payment of $29.18 on 6 July, 1906, by check, as follows: MARION, N.C. 6 July, 1906.

Pay to the order of Armstrong, Cator Co., $29.18 (twenty-nine 18-100 dollars).

To Merchants Farmers Bank, Marion, N.C. (In full to date.) D. N. LONON.

The check was endorsed by plaintiffs and duly paid.

The court submitted this issue to the jury: Is the defendant indebted to the plaintiffs and, if so, in what amount? No.

From the judgment rendered plaintiffs appealed. We have examined the record and exceptions and the judge's charge in this case, and find no reversible error. (435) There is only one assignment of error relating to the testimony taken or rejected, and that is without merit. The other assignments of error relate to prayers for instruction and to the charge of the court. There is evidence upon the part of plaintiff, in the deposition of Cator, as well as the evidence offered by defendant, that there was a dispute, or at least some misunderstanding in regard to one item in the account, which amounted to the sum now claimed. The check indicated on its face that it was sent in full payment to date thereof and while this is not, under the circumstances of this case, conclusive, yet the receipt of it by the plaintiffs, their endorsement of it and retention of the money, is sufficient evidence to go to the jury that it was sent and received as a full payment and discharge of all indebtedness of defendant to plaintiffs, and so intended.

In charging the jury we think his Honor followed the principles laid down in Petit v. Woodlief, 115 N.C. 125; Boykin v. Buie, 109 N.C. 503;Koonce v. Russell, 103 N.C. 179; Pruden v. R. R., 121 N.C. 511; and in his instructions and those refused we find no error that necessitates another trial.

Kerr v. Saunders, 122 N.C. 635, not cited in either brief, is very much in point.

No error.

Cited: Drewry v. Davis, 151 N.C. 297; Colvard v. R. R. ib., 523;Aydlett v. Brown, 153 N.C. 336; Woods v. Finley, ib., 499; Bank v.Justice, 157 N.C. 375; Rosser v. Bynum, 168 N.C. 342; Chilton v.Groome, 168 N.C. 641; Mercer v. Lumber Co., 173 N.C. 54; Moore v.Accident Assurance Corporation, ib., 538.

(436)