| N.C. | Aug 5, 1850
This is an action of debt on a bond for $150, dated 14 July, 1842, and "payable 1 January, 1844, in good trading, to be valued and delivered at Eller's house." Plea, payment. Before the jury was impaneled the defendant, upon the authority of a letter from the plaintiff to him, moved to dismiss the suit, but the court refused the motion. In support of the issue the defendant gave evidence that, before the bond fell due and while the plaintiff held it, the plaintiff and the defendant agreed that any debts of the plaintiff to other persons which the defendant would discharge and take up should be allowed as payments on this bond; and the defendant then produced several justices' judgments against the plaintiff to the amount of the bond, and alleged that he paid them before the bond fell due, but gave no evidence thereof. On the part of the plaintiff evidence was then given that, on 1 January, 1844, one Deaver, to whom the plaintiff had transferred the bond, attended at Eller's house to receive payment, and Eller then tendered him some old horses and other specific articles of the value of $150, as then alleged by the defendant, which Deaver refused to (277) receive, on account of their deficiency in quality.
The court directed the jury that the sums due on the judgments were not payments on the bond, unless the parties had applied them, or agreed to apply them, to it; and that, whether such was the fact or not, it was for them to inquire, and in doing so they might consider that the defendant tendered other things in discharge of the bond, after the period at which he alleged he had paid it by taking in the judgments. The court *204 also instructed the jury that unless they should find it to have been paid, they were to consider it as a bond for $150, payable absolutely in money, and allow interest accordingly. After a verdict and judgment for the plaintiff, the defendant appealed. The motion to dismiss was not made by the plaintiff or his attorney, but by the defendant, and, as must be understood, against the will of the plaintiff at that time. The alleged letter, under which the defendant assumed the authority, is not set forth, and hence it cannot be seen here that it conferred it, and that his Honor erred, supposing that the motion could be entertained under any circumstances. We do not, therefore, consider that point, which, moreover, the defendant abandons, as he states that both he and the plaintiff have been enjoined, at the suit of Deaver, from dismissing this suit.
The instructions to the jury were very indulgent to the defense, in leaving it to the jury to draw inferences to an extent not warranted by the defendant's own evidence. For he gave no evidence that he had paid the judgments against the plaintiff; and, moreover, if he ever paid them, he failed to (278) show that he did so before his plea in this suit. For this latter reason, if no other, the verdict should have been against the defendant on that issue.
The instrument is an obligation for $150, and is necessarily payable in money, unless it was discharged in specific articles or the due tender of them at the day and place specified, of which there was no plea.
PER CURIAM. Judgment affirmed.
Cited: Plankroad v. Bryan,