59 S.E. 685 | N.C. | 1907
This action was brought to recover the sum of $1,274.02, being the balance of an account alleged to be due by Dowd King, of which firm the defendant is a member, to the plaintiff, for money advanced and goods sold and delivered. The original amount was $7,589.18, but on *140 28 February, 1903, Dowd King paid thereon $3,162.01, leaving a balance as of that date of $4,393.17. The debt of Dowd King was contracted with the Dowd King Supply Company, whose interest therein has passed to the plaintiff corporation, which is entitled to recover the balance of the account, if any is due. The firm of Dowd King ceased to do business after the organization of the Dowd King Supply Company, and went into liquidation. On 16 March, 1904, the defendant W. F. Dowd agreed with S. F. King, his former partner, who was at the time the treasurer and general manager of the plaintiff company, that he would pay to the plaintiff the sum of $3,119.15 in full satisfaction and discharge of his part of the liability as a member of the firm of Dowd King to the plaintiff for the said balance of $4,393.17, it being two-thirds thereof, which was W. F. Dowd's just proportion of the liability as between him and S. F. King, the said Dowd having an interest of two-thirds and King the remaining interest of one-third in the partnership of Dowd King. In pursuance of this agreement, he paid the sum of $3,119.15 to S. F. King as treasurer and general manager of the plaintiff company in discharge of his said liability to it, and the money, or its equivalent, was received by King for that purpose and (193) credited on the books of the plaintiff to Dowd King by S. F. King. It appears that on 6 April, 1903, the Dowd King Supply Company sold to Dowd King merchandise to the amount of $6.25, and they are charged with that sum on the books of the supply company as of that date, and are credited with $34 collected by the supply company for Dowd King as of 20 February, 1903. These amounts are included in the general balance of $7,589.18. The defendant W. F. Dowd, among other defenses, pleaded the statute of limitations. One of his defenses was that there had been a full accord and satisfaction of his liability to the plaintiff by virtue of the transactions between him and S. F. King, its treasurer and general manager. W. F. Dowd had been an officer of the Dowd King Supply Company and was an officer of the plaintiff company before and after the transaction with S. F. King, but had no official connection with the latter company at the time of the said transaction. Evidence was taken upon the controverted matters between the parties, but it is not necessary to be stated, as it has no practical bearing upon the case as decided by the Court. The court submitted three issues to the jury, which with the answers thereto, are as follows:
"1. Is the defendant W. F. Dowd indebted to the plaintiff, and if so, in what amount?" Answer: "$1,272.04, with interest from 16 March, 1904."
"2. Was the payment of $3,119.15 in full accord and satisfaction, as alleged in the answer?" Answer: "No." *141
"3. Is the plaintiff's claim barred by the statute of limitations, as alleged in the answer?" Answer: "No."
At the close of the testimony the judge charged the jury: "That if they found the facts to be in accordance with the testimony introduced in the cause, they would answer the first issue `$1,272.04, with interest from 16 March, 1904'; the second issue `No,' and the third issue `No.'"
Upon the verdict judgment was entered for the plaintiff, and the defendant appealed, having duly reserved exceptions to all errors in the rulings and charge of the court. After stating the case: We need not stop to inquire whether S. F. King had sufficient authority to enter into the agreement with W. F. Dowd, by which the latter was discharged from all liability upon the debt due to the plaintiff by Dowd King, as we decide the case upon another ground, though we are inclined to the opinion that there was no evidence of authorization or of ratification by the plaintiff.
The plaintiff's cause of action is barred by the statute of limitations, in any view of the evidence. It was not denied that W. F. Dowd paid the money to the plaintiff through its general manager, S. F. King, in full satisfaction and discharge of his liability to the plaintiff. It was only contended that King had no express authority to make the settlement with Dowd, and that there was no ratification of his act by the plaintiff, and especially that King was interested in the transaction and could not, therefore, represent his principal so as to bind him. Whether the agent must derive some personal benefit from the transaction in order to disqualify him to act for his principal and so as to produce a conflict between his own interest and that of his principal, is another question, which was ably argued before us, but the discussion of which we may well pretermit.
If W. F. Dowd paid the money to King as general manager in satisfaction of his liability, it is not within the power of the plaintiff to repudiate his act as being one not authorized, and apply the money as a payment on the debt. The money must be accepted according to the intention of the parties to the transaction and applied accordingly; that is, to full discharge of Dowd's liability, or rejected for the want of authority, in which case the parties would be restored to their original rights. Sound morality and fair dealing imperatively (195) require the law to apply this rule to our business affairs. The plaintiff is not permitted "to blow hot and cold," or to accept and reject at the same time. As the two rights are conflicting, the law gives to it *142
an election to ratify the act of its agent when it was discovered, and thereby discharge Dowd, or to reject the unauthorized act and stand upon its rights, unaffected by it. This principle is such a just and salutary one that it would surprise us if we should find that the law had not adopted it. But the law has, and by the decisions of this very Court it has been fully recognized and applied to cases very much like the one at bar. What stronger statement of the doctrine do we need than the language of the Court in Hewlett v. Schenck,
(196) The law as to the legal effect of a partial payment in discharging the entire debt, where there is an agreement of that kind, has been changed by Laws 1874-75, ch. 178 (Revisal, sec. 859). But that change does not in the least impair the force of the case we have cited as a conclusive authority against the plaintiff upon the facts in the record before us. Rev., 371, declares as follows: "No acknowledgment or promise shall be received as evidence of a new or continuing contract from which the statute of limitations shall run, unless the same be contained in some writing signed by the party to be charged thereby; but this section shall not alter the effect of any payment of principal or interest." It will be seen that there is no express provision that a partial payment shall prevent the operation of the statute except from the time it was made. The statute merely leaves its effect to be determined by the law as it was before the enactment of the section as to a new promise. There was no reference in the Statute of 21 Jas. I., ch. 26, to a payment as operating to stop the running of the statute, and as fixing a new terminus a quo, as in the case of a promise to pay. A payment was allowed this effect by the courts, and for the reason that it raised an *143
implied promise to pay the residue of the debt. But the rule is limited in its application to the reason upon which it is based, and the payment consequently must have been made under such circumstances as will warrant the clear inference that the debtor recognized the debt as then existing, and his willingness, or at least his obligation, to pay the balance.Battle v. Battle,
The intention of W. F. Dowd to pay only in full settlement and discharge of his liability is too plain in this case to admit of the slightest doubt. He expressly stipulated for exemption from payment of the balance of the debt. *144
(198) The law will not permit the amount collected by the Dowd
King Supply Company from Dowd King, to wit, $34, and credited on their account without any authority from them, and the amount collected, $6.25, to be considered as constituting a mutual account between the parties, so as to put the statute in motion only from the last item. In Hussey v. Burgwyn,
The charge of the court was, therefore, erroneous. It should have been the very reverse of what it was as to the third issue.
New trial.
Cited: S.C.,
(199)