33 N.C. 227 | N.C. | 1850
The declaration is in debt on a bond for $170.12, alleged to be executed by the defendant to George R. Ledford, indorsed to Javan Trammell and by him to the plaintiff. Pleas, non est factum, payment, and the statute against usury. The bond produced *171 on the trial was for $262.56, with sundry payments credited on it. After proving its execution, the plaintiff offered it in evidence, and the defendants objected to it for the variance between it and that declared on; but the court received it. On it were the two indorsements stated in the declaration, but that to the plaintiff purported to be made in the name of Javan Trammell "by his agent, Newell Trammell." The plaintiff then produced a witness who stated that he was with said Javan and Newell at their residence in Georgia, before the indorsement to the plaintiff, and the former said that he was too unwell to visit North Carolina, and he intended to (228) send Newell to do some business for him, and that, on the same occasion, Newell stated to the witness that he was going to North Carolina to collect a bond on Lewis Vandyke; but the witness could not tell whether Javan heard that or not. Upon that evidence, and after objection from the defendants, the indorsements were read to the jury. The defendants then gave evidence that the defendant Vandyke had been the guardian of the obligee, Ledford, and that about three months after Ledford came of full age he and Vandyke met for the purpose of making a settlement, and that, between themselves, they ascertained the principal sums received, the disbursements made by the guardian for the ward, and that, then, they referred it to three persons to make the proper calculations of interest, so as to compute the sum then due to Ledford, and that, in doing so, those persons calculated compound interest up to the day of the settlement, and thereby made the balance of principal and interest amount to the sum of $262.56, for which the bond was given.
The counsel for the defendant insisted that the bond was usurious, and also, that Newell Trammell had no power to make the indorsement to the plaintiff. But the court instructed the jury that the transaction between Ledford and Vandyke was not usurious, and that if they believed Newell Trammell had in fact been authorized by said Javan to indorse the bond in his name, they ought to find for the plaintiff, after deducting the payments proved. The jury found the payments, and then a balance of principal money of $172.69 due on the bond, and assessed damages for interest since the last payment, and also found for the plaintiff on the plea of usury, and after judgment the defendant appealed. The instructions were right upon the question of usury. The point as to the amount of interest was referred to arbitrators, and there is nothing to show that their determination was not the honest result of their judgment, without collusion with the view of giving color to an arrangement of the parties in evasion of the statute. The award, thus fairly made, judicially established the interest legally due, and one of the parties can no more unravel the award in order to open the question than he could, for that purpose, go behind a judgment or decree of a court of justice. Besides, the decision of the arbitrators was perfectly correct. It is true that interest on a debt from a guardian is not compounded after the ward comes of age. But that was not done here. The mode of compounding the interest in such cases is to make annual rests, making the aggregate of principal and interest due at the end of a particular year a capital sum bearing 6 per cent interest, thenceforward for another year, and so on, with rests from year to year.
But if a sum be found due at a rest day during the guardianship, that sum, being then converted into capital, is entitled to draw interest thereafter until it shall be paid, and that is but simple interest, there being no subsequent rest made. That was this case; for the settlement was made within three months after the ward came of age, and, as the Court understands the statement, 6 per cent interest merely was computed on the balance due at the preceding annual rest, during the infancy, from that day up to that of the settlement on which the bond was given. That was legal, for as no rest was made after the full age of the ward, it is manifest he only got simple interest on the sum the law made principal during his minority. The other part of the instructions, if erroneous, was immaterial, (230) since the indorsement from Trammell was not in issue on the record. If the plaintiff had brought the action on the case given by the statute to the assignee of a bond, proof of the indorsement as well as of the bond would have been received on the general issue; because that goes to every fact entering into the right of the plaintiff and the obligation of the defendant to him. But in debt on a bond the plea non est factum is, in terms, restricted to the point that the supposed bond is not the defendant's deed; consequently, a special plea was necessary to put the indorsements in issue. But it was clearly erroneous to receive in evidence a bond for $262.56, under a declaration on one for $170.12, upon non est factum pleaded. The description of a deed in the declaration must be sustained by the proof; otherwise, the pleadings do not identify the cause of *173 action, and there would be no means by which the defendant could avail himself, in another suit, of a judgment for or against him in this.
PER CURIAM. Judgment reversed and venire de novo.
Cited: Whitford v. Foy,
(231)