Locke v. Andres, 29 N.C. 159, 7 Ired. 159 (1846)

Dec. 1846 · Supreme Court of North Carolina

29 N.C. 159, 7 Ired. 159

THOMAS LOCKE vs. TIMOTHY ANDRES.

To make specific articles payments, they must be received as payments, or by subsequent agreement they must be applied as payments.

Appeal from the Superior Court of Law of Bladen County, at the Fall Terpn, 1846, his Honor Judge Settle presiding.

The action is debt upon a judgment, and the plea, payment. On the trial the defendant proved by a witness, that the plaintiff had been indebted to one Alfred Andres on a note for $100 ; and that tbe plaintiff requested the witness to get Alfred Andres to take the plaintiff!s judgment against the defendant, and credit his note for the amount- of it; but that Alfred Andres never gave the credit on the plaintiff’s note, but required the plaintiff to pay the whole note in cash, and the plaintiff did so. The defendant further proved, that he had at several times, let Alfred Andres have small quantities of bacon. Upon that evidence the defendant moved the Court to instruct the jury, that they might find a payment on the plaintiff’s judgment to the amount of the value of the bacon got by Alfred Andres. But the Court refused to give the instruction ; and, from a verdict and judgment for the whole of the plaintiff’s demand, the' defendant appealed.

1). Reid, for the plaintiff.

Strange, for the defendant.

Ruffin, C. J.

The instruction was very properly refused, for there was no evidence from which a payment could have been inferred. If the defendant had owed the debt to Alfred Andres, the bacon would not have been a payment, properly speaking, but only formed the subject of a mutual demand, that might have been set off. To make specific articles payments, they must be received as payments, or by subsequent agreement they must be applied as payments. But the case could not be viewed as favourably to the defendant, as to suppose even, that the defendant’s debt belonged to Alfred Andres. There was merely a proposal by the plaintiff, through the witness, that Alfred Andres should accept the plaintiff’s judgment as a credit on the plaintiff’s debt to him. It did not appear, that the witness ever communicated the proposal to Alfred Andres ; much less that the latter had acceded to it; and still less that the defendant was a party to any arrangement made in compliance with the plaintiff’s proposal. On the contrary, the plaintiff was required to pay, and did pay, the whole of his debt to Alfred Andres, as he was bound to do. There is no ground whatever, on which the defendant can ask the plaintiff to answer for the bacon sold to Alfred Andres, and especially, to-treat the value of it as a-payment on this debt.

Pee CuRiA-nxi Judgment affirmed.-