Standard Oil Co. v. Moore, 195 N.C. 305 (1928)

March 14, 1928 · Supreme Court of North Carolina
195 N.C. 305
STANDARD OIL COMPANY v. W. C. MOORE et al.

STANDARD OIL COMPANY v. W. C. MOORE et al.

(Filed 14 March, 1928.)

Trial — Motion to Nonsuit — Evidence Held Sufficient to Go to Jury.

It is error to grant a judgment as of nonsuit in plaintiff’s action to recover for goods sold and delivered when there is evidence tending to show that a check marked paid, introduced in the trial, did not cover the *306transaction, though, upon its face it purports to be “in full of all accounts to date.” Refining Corporation v. Sanders, 190 N. G., 203, and other cases cited as controlling.

Appeal by plaintiff from Cranmer, J., at December Term, 1927, of LeNOIR.

Civil action to recover $631.05, witb interest, for goods sold by plaintiff and delivered to defendants on wbat is styled tbe “Columbia account.”

Tbe defendants offered in evidence a check for $3,681.98, made payable to tbe plaintiff, bearing notation: “Payment in full of all accounts to date,” and contended that the account in suit was covered by said payment.

But there was evidence that this check was given to plaintiff’s agent at Kinston and that it only covered accounts in bis district, which did not include the Columbia account.

From a judgment of nonsuit entered at .the close of all the evidence the plaintiff appeals.

Cowper, Whitalcer & Allen for plaintiff.

F. E. Wallace and Shaw <& Jones for defendants.