70 S.E. 745 | N.C. | 1911
Civil action, heard on exceptions to report of referee. On a former appeal in this cause, reported in
PIKEVILLE, N.C. 3 May, 1906.
STANDARD SUPPLY COMPANY, Wilmington, N.C.
GENTLEMEN: — Yours of May 1st to hand. I pay out the money Finch Person have in my hands as they direct. That is, all their drafts and checks are sent to the bank at Fremont and placed to my credit, and from that amount I pay out as they direct. So, if they draw a draft on me and do not have money enough to their credit to pay it, I do not pay until they do have. This is an arrangement of recent date. I have up to recently been paying their bills, regardless of whether they had anything to their credit or not. I find that, in order to make them more strict with their business, the responsibility of it must rest on their own shoulders from now on.
With this explanation, I trust my refusal to accept draft will be satisfactory to you. Respectfully, etc.,
J. E. PERSON.
That plaintiff in reply to said letter from J. E. Person wrote to him the following letter:
DR. J. E. PERSON, 4 May, 1906. Pikeville, N.C.
DEAR SIR: — Our extension of credit to Finch Person has been on the basis of a letter received from you, in which you stated that you *362 were supporting this firm with your finances. We have depended entirely upon your responsibility in making accounts with them, knowing that you are perfectly responsible for any amounts which they would probably make in their joint interest. We shall have to ask you to reconsider your determination not to accept a paper from these parties, as we know nothing of their responsibility and should not have credited them to the extent we have unless we had felt authorized so to do (458) from your letters. We would be glad to have you say whether you will accept a paper from them to sign and forward you, and which we are perfectly willing to make on the basis of one-half and three months, if you so desire, or whether you are unwilling to do this.
Yours very truly, STANDARD SUPPLY COMPANY.
And in reply to that letter, received the following reply from J. E. Person: MAGNOLIA, N.C. 10 May, 1906.
STANDARD SUPPLY COMPANY, Wilmington, N.C.
GENTLEMEN: — Your letter of May 4th has been received. I am here at the mill of Finch Person to see what progress they are making with their work. I find that the dry-kiln is not completed, and when it is, which will be soon, I think you will get your money sooner than to sign a paper or papers for the time mentioned in your letter. Just as soon as the dry-kiln gets in operation I will see that your bill is paid.
Respectfully, etc., J. E. PERSON.
That plaintiff, in reply to above letter, wrote J. E. Person the following letter:
DR. J. E. PERSON, 11 May, 1906. Fremont, N.C.
DEAR SIR: — Your letter of May 10th is before us, and entirely satisfactory. We presumed that the proposition to make a paper would probably be a greater accommodation to Messrs. Finch Person than to wait on them for an early settlement; but it would appear from your letter that your preference, which we presume is also theirs, is to have this paid in the ordinary way and after a short period.
Thanking you for your kindness in this matter, we are,
Yours very truly,
STANDARD SUPPLY COMPANY.
(459) And J. E. Burr, president of plaintiff corporation, testifying for plaintiff on the former trial, after saying that the letters in *363
question were written by J. E. Person, the alleged guarantor, stated further: "The account was allowed to run on the strength of Dr. Person's letter of 10 May, 1906." The case on the last appeal made out by counsel then states that the court charged the jury: "On the evidence, if believed, the defendants Finch Person were liable for the full amount demanded, and on the second issue, as to J. E. Person, the amount due was $451.75, being the amount due on said account after the letter of J. E. Person was written on 10 May, 1906." On the facts in evidence this Court held there was error, saying: "The defendant J. E. Person is not liable for the former portion of the account (that before the letter of 10 May, 1906), for the lack of any valuable consideration for his promise," citing Green v. Thornton,
"7. That the dry-kiln, hereinbefore mentioned in the letter (461) from J. E. Person to plaintiff, dated 10 May, 1906, was installed and put in operation before the institution of this action on 27 May, 1907.
"8. That the amount of said account due and owing on 10 May, 1906, was $451.75, and that no part of the same has been paid, though demand for payment has been made on defendant J. E. Person by the plaintiff.
"9. That no part of the judgment recovered against the said W. R. Person and S. H. Finch, partners trading as Finch Person, hereinbefore mentioned, has been paid."
And upon such facts we concur in his conclusion, "That there was a binding contract of guaranty on the part of the appellant J. E. Person, supported by a valuable and sufficient consideration, and that said appellant is lawfully due and owing the amount of the account accrued prior to the letter of 10 May, 1906."
The statute of frauds is not involved in the case, for the appellant's letter of 10 May, 1906, contains a definite promise to pay as soon as the dry-kiln gets in operation, and since the notable decision of Miller v.Irvine,
While the record in the former appeal left the matter in such uncertainty that the Court did not feel justified in making a final (462) decision of the case, and while there is some doubt even now as to whether the letter of plaintiff of date 11 May amounts to a distinct and definite agreement not to sue, there is no longer room for construction that the correspondence, taken in connection with the full and definite statements of the witness Burr, establishes the proposition that there was actual forbearance to sue the debtors, and that this was at the instance and request of the appellant. We are of opinion, therefore, and so hold, that the testimony fully justified the findings of fact, and that on such findings there should be judgment entered against the guarantor for the amount ascertained to be due. His Honor below no doubt acted on his interpretation of the former opinion, which was expressed in terms somewhat positive in view of the fact that a new trial was to be awarded.
There is error and on the facts established, judgment will be entered for the plaintiff.
Reversed.