Meadows Fertilizer Co. v. Farmers Trading Co., 203 N.C. 261 (1932)

Oct. 5, 1932 · Supreme Court of North Carolina

203 N.C. 261

MEADOWS FERTILIZER COMPANY v. FARMERS TRADING COMPANY et al.

(Filed 5 October, 1932.)

Pleadings I b — Judgment may be entered for that part of note admitted to be due without prejudice to right of plaintiff to litigate balance.

Where in an action on a note the defendants admit liability in a certain part thereof but deny liability for the balance: Seld, an order directing that plaintiff recover the amount admitted to be due without prejudice to plaintiff’s right to litigate the balance of the note is authorized by C. S., 865, and the order will be affirmed on defendants’ appeal therefrom.

Appeal by defendants from Granmer, J., at December Term, 1931, of CRAVEN.

Civil action to recover on a promissory note of $893.65 given to tbe plaintiff by tbe defendant, Farmers Trading Company, Incorporated, and endorsed and guaranteed by tbe individual defendants, officers and stockholders of tbe defendant company.

Tbe defendants, in their answer, admit tbe execution of tbe note, but contend that they were to pay no more for tbe fertilizer purchased than tbe same grade would have cost bad it been bought from tbe Contentnea Guano Company. Under this alleged contemporaneous, oral agreement, it is asserted tbe true amount due tbe plaintiff is $192.66, and tbe defendants tender judgment for this amount, and no more.

Upon tbe pleadings it was adjudged that tbe plaintiff recover of tbe defendants tbe sum of $192.66, with interest, tbe amount admitted to be due, without prejudice to tbe plaintiff’s right to prosecute its suit on tbe balance of tbe note in controversy.

From this order, tbe defendants appeal, assigning error.

Kenneth O. Boyall and Andrew C. McIntosh for plaintiff.

Connor & Hill for defendants.

Stacy, C. J.

We are not now concerned with whether the defendants will be ¡oermitted to show upon the hearing the alleged contemporaneous oral agreement as to the price to be paid for the fertilizer. Walker v. Venters, 148 N. C., 388, 62 S. E., 510.

The appeal presents the correctness of the order directing that plaintiff recover of the defendants the amount admitted to be due without prejudice to the plaintiff’s right to litigate the balance of the note.

The statute under which the order was made, C. S., 865, provides that when the answer “expressly, or by not denying, admits part of the plaintiff’s claim to be just, the judge, on motion, may order the defendant to satisfy that part of the claim, and may enforce the order as it enforces a judgment or provisional remedy.”

In Parker v. Bledsoe, 87 N. C., 221, on facts closely akin to those here appearing, an order was entered which directed that the plaintiff recover of the defendants the amount admitted to be due and retained the action for further hearing on the balance of plaintiff’s claim. This was the procedure followed in the instant case. The order is authorized by the statute. 34 C. J., 143.

Affirmed.