Thompson v. N. A. Currie & Co., 197 N.C. 793 (1929)

Oct. 23, 1929 · Supreme Court of North Carolina

197 N.C. 793

T. R. THOMPSON et ux. v. N. A. CURRIE & COMPANY, Inc.

(Filed 23 October, 1929.)

Appeal by plaintiffs from Cr.atnmer, J., at April Term, 1929, of Bladen.

No error.

Action to enjoin foreclosure of mortgage on land, upon allegation that the debt secured thereby had been paid. Defendant denied the allegation, and prayed for judgment' on the debt, and for decree of foreclosure.

The issue submitted to the jury was answered as follows: “In what sum, if any, are plaintiffs indebted to the defendant on note and mortgage described in the pleadings? Answer: $753.06, and interest to date.”

From judgment on the verdict, and decree of foreclosure of the mortgage, plaintiffs appealed to the Supreme Court.

F. D. Hachett, Jr., for plaintiffs.

H. H. Clark for defendant.

Per Curiam.

Plaintiffs’ assignments of error on their appeal to this Court cannot he sustained.

The receipt offered in evidence by the plaintiffs shows on its face that the money, to wit, the sum of $1,162.62, for which it was issued was paid by plaintiffs to defendant in settlement of plaintiffs’ account with defendant. There was no contention that plaintiffs have paid to defendant any other money than that shown by the receipt. Plaintiffs kept the receipt as written for nearly nine years, before contending that they had paid the note secured by the mortgage and that the receipt was evidence of suck payment. They do not now contend that there was any •mistake or fraud in the receipt. The instruction of the court with respect to the receipt cannot be held for reversible error.

The issue submitted to the jury involved only a question of fact. This question was submitted to the jury in a charge which we think is not subject to the exception that the court failed to comply with C. S., 564. The judgment is affirmed.

No error.