78 N.C. 67 | N.C. | 1878
The defendants had executed to one Meyer eight notes for $125 each, and Meyer had transferred them to the plaintiffs as collateral, to secure a debt for $415, before the notes were due. The defendants then executed to the plaintiffs four new notes of $100 each. And here the trouble begins.
The defendants allege that they gave to the plaintiffs the four new notes in full satisfaction of the eight old notes; and that instead of delivering them up to them, the plaintiffs delivered them back to Meyer, of whom they had got them.
The plaintiffs alleged that the new notes were not given in full satisfaction of the old, but in satisfaction of the plaintiffs' debt against Meyer, with the understanding that $400, the amount of the new notes, was to be entered as part satisfaction of the old notes, and that they gave the old notes back to Meyer. *48
(70) The jury find all the issues for the defendants, and unless his Honor erred in his charge, the verdict must stand.
His Honor charged the jury that if the plaintiffs agreed to deliver to the defendants the eight old notes, and failed to do so, they could not recover. Under that charge and the verdict, we are to assume that at the time the defendants gave the plaintiffs the four new notes it was upon the agreement that the plaintiffs were to deliver up to them the eight old notes, and that they did not do so, but delivered them back to Meyer.
In the view of the case, and if that were all, it would be such manifest injustice to make the defendants pay the new notes, while the old notes were outstanding against them, that we would certainly afford them some relief either in law or equity; but the charge allowed no force to the fact, which was testified to by the parties and witnesses on both sides, that after the plaintiffs gave the old notes back to Meyer the defendants and Meyer made a new arrangement of their matters concerning the old notes, and they went together to the plaintiffs, and all the old notes were destroyed by consent.
In failing to place this fact before the jury with proper instructions as to its effect, his Honor erred. And for this error there must be a
PER CURIAM. Venire de novo.
(71)