Grier & Grier v. Lineburger , 70 N.C. 173 ( 1874 )

Read®, .1.

The only question is, whether there was any evidence of the payment of the note. The defendant testified that when the note was executed, it was agreed that it was to be paid off in goods from the defendant’s factory, and that he subsequently delivered goods to his agent, Pasour, to deliver to the payee more than sufficient to pay the note. This was evidence tending to show the first step towards the payment. The defendant then introduced the agent, Pasonr. If Pasour had testified that he delivered the goods in payment of the note, that, in connection with the testimony of the defendant, if believed, would have been full proof. Pasonr does say that he delivered the goods, but he says more than that. He says that “ he sold and delivered the cotton goods to the payee to the amount of the note, and that the goods were sold on the usual time, thirty days.” And so it is contended that this disproves the delivery of the goods in payment of the note. What view the jury would have taken of the testimony we cannot tell. It may be that, viewing it together with the defendant’s testimony, they might have found that Pasour was mistaken as to its being an ordinary sale, on thirty days time, and then to be paid in cash, and not applied in satisfaction of the debt. The jury might have found that, while Pasour thought it an ordinary sale, yet the parties understood it differently. Especially might they have so found in view of the fact, that both parties to the note swear that he was mistaken. The defendant swears he was mistaken ; because he knows that he sent the goods by him to pay the note. And the payee, who was also examined as witness, swears that he did not take the goods in payment of that note; but that at the time he received the goods-he had another claim against the defendant older than the note for cotton, which he had sold him, and that the goods delivered “ were to be credited ” on that older debt. And then the defendant swore that the old debt had been included in the note, so that there was no such old debt. All this taken iir connection with the presumption that the payee would not have bought goods to pay money for, when he held a debt against the defendant, might have been left to the jury as evidence tending to show that the goods were delivered in payment of the note.

There is error.

Pee Oubiam. Venire de novo.