Dismukes v. Wright, 20 N.C. 78, 3 Dev. & Bat. 78 (1838)

June 1838 · Supreme Court of North Carolina

20 N.C. 78, 3 Dev. & Bat. 78

RICHARD T. DISMUKES v. JOHN WRIGHT.

In an action against the endorser of a promissory note since the act of 1827, c. 2, (1 Rev. stat. c. 13, see. 11,) it is unnecessary to state in the declaration, or prove on the trial notice of non-payment.

If a debtor has conveyed property to his creditor in trust to sell and satisfy the debt, and the latter sells the property and holds the proceeds it is a payment of the debt.

This was an action of Assumpsit brought to recover of thejdefendant as endprser, the amount of two notes. Pleas.— The general issue and payment.

Upon the trial at Davie on the • last circuit, before his Honor Judge Bailey, the defendant objected that he had not received notice of nonpayment before the 'suit was brought, but the objection was overruled. He then offered to shew that the maker of the notes, had, for the purpose of paying them, assigned to the plaintiff' as trustee, property sufficient to satisfy them, and that the plaintiff had sold the property and received the money. 'This evidence was objected to by the plaintiff, and was rejected by the Court. The plaintiff had a verdict, and the defendant appealed.

Boyden, for the defendant. .

D. F. Caldwell, for the plaintiff.

Daniel, Judge.

The first question raised in this case has been decided by us at the present Term in Smith admr. v. Irwin. We there determined that an endorser of a note, is not entitled under the act of 1827, c. 2, (1 Rev. stat. c. 13, sec. 11,) to be notified that he is looked to for payment before suit can be brought against him.

Upon the second point the defendant offered to shew, that the principal debtor in the two notes, had placed property in the hands of the plaintiff as trustee, to sell and raise money, and pay these two notes, and furthermore that he had sold the property, and raised from the sales money sufficient to discharge them. We are unable to see upon what grounds this evidence could be legally rejected. The plaintiff being the holder of the notes, and at the same time-trustee to sell property, placed in his hands expressly to discharge the notes, it does seem to us, that when he did sell and receive the money, it was immediately a payment of the notes. We think the evidence was improperly rejected, and a,new trial must be granted.

June, 1838.

Per Curiam. . Judgment reversed.