Downey v. Young, 12 N.C. 432, 1 Dev. 432 (1828)

June 1828 · Supreme Court of North Carolina

12 N.C. 432, 1 Dev. 432

Samuel S. Downey v. David J. Young.

From Granville.

After the Defendant has pleaded to a warrant, so as to meet the case made by it, the Plaintiffcannot, upon an appeal, declare in such a manner as to render the plea ineffectual.

TIpon a quantum meruit, where the Defendant pleaded a tender and paid money into Court, it seems that lie is not estopped to show a special contract.

The Plaintiff warranted the Defendant “for the nonpayment of the sum of sixty dollars due by account,” and recovered judgment for fourteen dollars, from which the Defendant appealed. The memorandum of the pleas in the County Court was, “general issue, tender often dollars and fifty cents, money paid into,-. Court.” In the County Court, the Defendant obtained a verdict, and the Plaintiff appealed. In the Superior Court a declaration was filed on a quantum meruit, whereby the Plaintiff sought to recover for hauling 14 sacks of salt. On the. trial, the Defendant offered to prove that the salt was hauled upon a special contract, for a less sum than the .Plaintiff claimed under bis quantum meruit. But his nor Judge. Strange, thinking that the Defendant, by paying money into Court, had admitted the cause of action as set forth in tiie declaration, and had reduced the contest simply to tiie amount, which the Plaintiff could, claim under the contract declared on, rejected the testimony. A verdict being returned for the Plaintiff, the Defendant appealed.

,Yas/i & Devereux, for tiie Appellant.

Badger for. the Plaintiff.

Hare, Judge.

By the act of 1794, (Jlev. ch. 414,) it is directed that ail sums, and how due, shall be-expressed in tiie warrants which shall issue for them. The warrant, which issued in the present case, would sustain a count for money due the Plaintiff, in the manner in which the Defendant admits he is his debtor. According to tiiis understanding of the warrant, the Defendant, in the County Court, pleaded a tender with a proferí, it follows that he has a right to give any tiling in evidence, which is consistent with this state of the pleadings, and that he is not deprived of this right by any gratuitous act of tiie Plaintiff. If by filing a declaration in the Superior Court consisting of this solitary count, the Plaintiff can deprive the Defendant of a defence, which he had already properly made, it should he considered as a mil lity. On tiiis ground alone, I think that tiie rule for a now trial should be made absolute. But if the question was upon the quantum meruit alone, 1 think the evidence should have been received, because the effect of a special, contract if proved, would be either to defeat tiie Plaintiff upon that count, or to fix the value of tiie work and labor, claimed under it. In both of which cases, tiie Plaintiff would bo entitled to the money brought' into Court, although he might be subjected to the payment of the costs. But on this part of the case I give no opinion.

Per Curiam. — Judgment reversed.