McCullen v. . Hood , 14 N.C. 219 ( 1831 )

Plea — accord and satisfaction, upon which the case was, that the plaintiffs were the heirs, and the defendant the administrator of Asher McCullen; that the defendant entered upon the lands which descended to the plaintiffs, and rented them out for two years; that afterwards the defendant handed to the guardian of the plaintiffs several notes, and took from him the following acknowledgment: "Received of Brittain Hood, as next friend to the heirs of Asher McCullen, (220) deceased, the following notes of hand, for rent of lands, etc., viz., etc." No other evidence was offered.

It was contended for the plaintiffs that a guardian could not make an accord and receive satisfaction for a claim of his ward; and, if he could, that the receipt was not evidence of an accord and satisfaction of the whole demand, so as to defeat the action, if in truth they were entitled to a greater amount of damages than that stated in the receipt.

His Honor instructed the jury that a guardian might, acting bona fide, make an accord and receive satisfaction for an injury to the estate of his ward so as to defeat his action, and left it with the jury to determine whether the notes were received as an accord and satisfaction or as a discharge pro tanto of the damages.

The jury returned a verdict for the plaintiff, allowing the amount of the notes as a part satisfaction, and assessed damages for the residue, and the defendant appealed. The plaintiff does not, and the defendant cannot bring into review the law, as laid down by the presiding judge, as to the power of the guardian to make an accord and receive satisfaction for the entry, and occupation by renting out the lands of his wards. Nor does the case require that we should examine the question. For we are of opinion that the evidence offered by the defendant is not even prima facie evidence of that fact. The only evidence offered in support of that plea was the receipt. And that shows only that certain bonds were received by the guardian of the defendant as next friend to the infants for rent. If it had been expressed in full of the rents received by him, or that they were all the bonds received by him for rent, or all that he had rented the lands for, an inference might be drawn that the guardian received them in full satisfaction. But no such expression is found in the receipt. Nor was any evidence offered of all or any of these (221) facts. There might be more bonds or money, and yet the receipt speak the truth. We, therefore, think the defendant has no reason to complain of the charge of the judge. He neither showed that they were all the bonds he received, or that they were for the full value, on which to found a presumption that the guardian received them in full satisfaction. Nor does the guardian say so in the receipt.

PER CURIAM. Judgment reversed.

Cited: Grant v. Hughes, 96 N.C. 191.