Henry v. Smith, 29 N.C. 350, 7 Ired. 350 (1847)

Aug. 1847 · Supreme Court of North Carolina

29 N.C. 350, 7 Ired. 350

ROBERT HENRY & AL. vs. LEWIS SMITH & AL.

In an action on a bond for $60, payable to two attornies for attending to a suit, which bond had been due more than twenty years, the defendants relied upon the presumption of payment or satisfaction under the statute, from the lapse of time. To rebut the presumption, the plaintiff proved, that one of the defendants had recently said that he had paid one-half of the bond, and the other half was relinquished, because the attorney to whom it was payable, had neglected to attend to the suit. Held, that these declarations were not sufficient te rebut the presumption.

Appeal from the Superior Court of Law of Haywood County, at the Spring Term, 1848, his Honor Judge Pearson presiding.

This suit was commenced on the 3d of April, 1839, by Warrant before a Justice of the Peace. It is debt on a bond for $60, dated April 8th, 1817, and payable immediately to Robert Henry and Joseph Wilson, two attor-nies, and expressed to be for a fee, for appearing for the obligors in an action of ejectment, then pending. It came on for trial in the Superior Court, upon the pleas of accord and satisfaction, and payment ad diem and post diem.

Upon the production of the bond, there appeared on it a credit for $30, paid by Smith, April 7th, 18IS, to Mr. Henry, and entered by that gentleman. Mr. Wilson died several years past. To rebnt the presumption of payment, the plaintiff offered evidence, that the bond was in the possession of the plaintiff Henry, until the year 1828, and that he then placed it in the hands of one Deaver for collection ; and that Deaver then presented it to the defendant, Smith, for payment, and Smith replied “ that he considered the debt satisfied : for he had paid Mr. Henry $30 for his part and Mr. Wilson had not been present at the trial of the suit, in which he had been employed, and for that reason he had agreed to give up his partthat Deaver then presented the bond to the defendant Wilde, and he said, that, soon after the bond was executed, he made an arrangement with Smith, by which Smith .undertook to pay the debt, and that he, Wikle, was to have nothing more to do with it and had supposed the money had been paid long ago: That shortly afterwards, Smith and Wikle were together in the presence of Deaver, and Smith admitted the statement Wikle had made to be true, but at the same time repeated what he had himself before said: That Deaver kept the bond from that time, until this suit was brought and mentioned the matter several times to Smith, within ten years before the issuing of the warrant, and Smith always insisted that the bond was satisfied in the manner before mentioned and refused to pay any thing on it.

The defendants then gave in evidence, that in 1835, Smith asked the plaintiff Henry, “ did you not agree, when I paid you the $30, to deliver me up the bond to be cancelled?” And Henry replied in the affirmative; but he said further, “ that when he spoke to Mr. Wilson, the latter claimed and took one half of the @30 which had been paid, and told him, Henry, to hold on to the bond for $15 due, as he and you had made a new agreement.” Whereupon, Smith insisted again, that Wilson had given up his half, as he had neglected the business, in which he had been employed.

The Court was of opinion, that the presumption of payment was not rebutted by the evidence given, and so instructed the jury, who gave a verdict for the defendants and after judgment the plaintiffs appealed.

Francis, for the plaintiffs.

N. W. Woodfin and Avery, for the defendants.

Ruffin, C. J.

We concur in the opinion delivered to ■the jury. There was a lapse of twenty-two years from the giving of the bond, and of twenty-one from the last recognition of it, as obligatory on the defendants, by the payment then made on it, before the bringing of this suit. There were indeed several applications to the obligors, or one of them, by the plaintiffs’ agent for payment, but' there is no explanation of the delay to sue, in the insolvency of the obligors or any acknowledgement of the defendants and request for forbearance: but the defendants, pn the other hand, directly refused, from the first, to pay any thing more and that distinctly on the ground, that the bond was satisfied upon a new arrangement between the obligees and them. If the facts alleged by Smith were proven, they would constitute a good accord and satisfaction ; for undoubtedly a lawyer, who undertakes to appear for a client and fails to do so, is answerable upon his contract to the client, and that will furnish a sufficient consideration for his agreement to cancel or deliver up a security for his fee. But the defendants are not obliged to prove that agreement in aid of the presumption of payment from the lapse of time, more than they would have been, if they, when applied to by Deaver, had alleged any particular mode of payment technically speaking. It certainly does not impair the force of the presumption, that the obligors, when asked for payment, should affirm, that the debt had been paid, or released, or satisfied in any other mode ; but this rather strengthens the presumption, inasmuch as it plainly shews a just reason why the obligees did not sooner demand payment. Here it appéars that one of the obligees admitted that he had agreed, twenty years before suit, to deliver up the bond as satisfied, and the defendants uniformly insisted, that the other obligee had been actually satisfied by setting off against his part of the bond his liability for not performing the engagement on his part, for which, the sum mentioned in the bond was to be his remuneration. It is, therefore, a strong case of the concurrence of the legal presumption with actual justice ; and the time mentioned in our Statute, ten years, has more than run twice over.

Pee Curiam. Judgment affirmed.