Jones v. . Cooke , 14 N.C. 112 ( 1831 )

His Honor charged the jury that if the plaintiff paid the debt of James C. Jones at the request of the defendant, he was not entitled to recover, unless the request was in writing. But if he paid the money at the request and for the use of the defendant, then he was entitled to a verdict on the last count in the declaration. The jury "found all the issues in favor of the plaintiff," and a new trial being refused, the (113) defendant appealed. Whether the sum of $525 belonged to James C. Jones or to the plaintiff was properly left to the jury. It was also submitted to them whether it was paid for the use and benefit of the defendant by the plaintiff. If it was, they were instructed that they should find a verdict for the plaintiff. They found so accordingly. Two objections are raised upon the record; the first, to the charge of the judge; the second, that the verdict is general, and it cannot be ascertained upon which of the two counts it was rendered.

As to the first, it appeared in evidence that the sheriff received from the plaintiff a bond as cash, and credited one of the executions with the amount, agreeably to the bargain and understanding the plaintiff had with the defendant. It is argued that the count for money paid to the use of the defendant is not sustained by that evidence. It appears to me otherwise. I think the transaction is susceptible of two views. The first is, that the sheriff voluntarily paid the money for the plaintiff, by crediting the executions, for which he had a claim upon the plaintiff. Or it may be taken, secondly, that he purchased the bond for cash, and having the cash in his hands, as belonging to the plaintiff, paid it over for the use of the defendant, as he was requested by the plaintiff to do, in discharge of the executions.

With respect to the second objection, nothing was said by the judge to the jury on the first count, on a breach of special contract. Their attention was called to the second count, which was for money paid to the use of the defendant. It may be fairly inferred, and ought to be so taken, that the verdict was rendered on that count. They were directed to inquire whether the money was paid for the use and (114) benefit of the defendants; if it was, they should find a verdict for the plaintiff. I think the verdict was responsive to the charge, and that the rule for a new trial should be discharged.

PER CURIAM. Judgment affirmed.

Cited: S. v. Long, 52 N.C. 26; Wilson v. Tatum, 53 N.C. 302; Jonesv. Palmer, 83 N.C. 305.