Bond v. Wilson.

This case is exactly like it stood when it was here before, 129 N.C. 387, except that the plaintiffs offered in evidence a certain letter written by the defendant to Samuel McD. Tate, after the commencement of this suit, bearing on the question of the alleged payments made by the defendant on the notes sued on, in addition to the evidence on that point at the first hearing. The letter, dated at Raleigh, 18 January, 1897, is in the following words and figures:

"When at home would have called to see you but was too unwell. I find the bonds are largely overpaid; had no idea of the payments made by you, except the first, and did not know how much it was. Is there anything you could possibly hold on to until it is adjudicated? My books show cash paid for Walton house, $2,300.

"Credited by and paid at sale ________________________ $ 644.56 Credited by amount entered on notes _________________ 509.94 Credited by _________________________________________ 154.90 Credited by _________________________________________ 310.03 Credited by _________________________________________ 258.21 ___________ $1,877.58"

The above was an account between Tate and Wilson (the defendant) of a fund in the hands of Tate belonging to Wilson — the proceeds of the sale of a piece of real estate in Morganton. The second credit given to Tate of $509.94 Wilson admitted was placed by Tate on Wilson's notes due to the plaintiffs by direction of Wilson. That credit was made on 3 June, 1884, on the $3,000. The third credit of $154.90 was made, by direction of Wilson, by Tate on the $2,000 note on 12 August, 1884. The fourth amount, $310.02, is endorsed as a credit on the (509) $3,000 on 11 September, 1890; and the fifth amount, $258.21, is endorsed as a credit on the $2,000 note August, 1883. The last two amounts, if entered on the bonds by Tate with the authority of the defendant, defeat the defendant's plea of the statute of limitations. Considering the business relations between Tate and Wilson we are inclined to the opinion that the letter was some evidence to be submitted to the jury of the payments. Several years had elapsed between the sale of the Walton property by Tate for the defendant and the entries made by Tate (they were in his handwriting) on the notes; and even up to the letter written in 1897 no protest had been made against the disposition of the fund in Tate's hands, or inquiry made of the fund. The evidence was submitted to the jury under proper instruction by his Honor, together with that of the defendant, and the weight of it was for them. It was more than a scintilla or suspicion. The instruction prayed for by defendant that the notes were barred by the statute of limitations on the evidence was properly refused.

No error.

CLARK, J., did not sit on the hearing of this appeal.

Cited: S. c., 137 N.C. 147.