Bradshaw v. Conger

BeosdeN, J.

This Court, in Walston v. Coppersmith, 197 N. C., 407, 149 S. E., 381, said: “It is not controverted that a dispute had arisen between the parties before the delivery of the cheek. Obviously, if the check had been delivered under the circumstances with the notation thereon, nothing else appearing, the delivery, acceptance and cashing of said check would have undoubtedly constituted a settlement.” Whether a dispute has arisen between the parties, before a check purporting to constitute a settlement in full, has been delivered by the party to be charged, constitutes an issue of fact for a jury. Hardware Co. v. Farmers Federation, 195 N. C., 702, 143 S. E., 471. In the case at bar there was one contract between the parties, and the testimony of plaintiff discloses that a dispute or controversy had arisen and existed between the parties long before the check was given. Hence the instruction of the trial judge was correct.

Complaint is made of the charge of the court upon the fourth issue, but the record discloses no exception to such instruction, and, therefore, tbe .same cannot be considered. Tbe defendant pleaded no counterclaim, and tbe trial judge instructed tbe jury tbat in any event plaintiff is entitled to recover $23.50. But tbe jury in answer to tbe third issue found tbat tbe defendant “tendered” to tbe plaintiff tbe correct amount of money involved, and it must, therefore, be assumed tbat tbe tender was properly made and kept alive, and is now presently available. Moreover, tbe burden of showing error is upon tbe appellant.-

No error.