165 S.E. 694 | N.C. | 1932
Civil action to recover on a promissory note of $893.65 given to the plaintiff by the defendant, Farmers Trading Company, Incorporated, and endorsed and guaranteed by the individual defendants, officers and stockholders of the defendant company.
The defendants, in their answer, admit the execution of the note, but contend that they were to pay no more for the fertilizer purchased than the same grade would have cost had it been bought from the Contentnea Guano Company. Under this alleged contemporaneous, oral agreement, it is asserted the true amount due the plaintiff is $192.66, and the defendants tender judgment for this amount, and no more.
Upon the pleadings it was adjudged that the plaintiff recover of the defendants the sum of $192.66, with interest, the amount admitted to be due, without prejudice to the plaintiff's right to prosecute its suit on the balance of the note in controversy.
From this order, the defendants appeal, assigning error. *262
We are not now concerned with whether the defendants will be permitted to show upon the hearing the alleged contemporaneous oral agreement as to the price to be paid for the fertilizer. Walker v. Venters,
The appeal presents the correctness of the order directing that plaintiff recover of the defendants the amount admitted to be due without prejudice to the plaintiff's right to litigate the balance of the note.
The statute under which the order was made, C. S., 865, provides that when the answer "expressly, or by not denying, admits part of the plaintiff's claim to be just, the judge, on motion, may order the defendant to satisfy that part of the claim, and may enforce the order as it enforces a judgment or provisional remedy."
In Parker v. Bledsoe,
Affirmed.