Littlejohn v. Gilchrist's executors, 3 N.C. 393, 2 Hayw. 393 (1806)

April 1806 · North Carolina Superior Court

3 N.C. 393, 2 Hayw. 393

Littlejohn vs. Gilchrist's executors.

IpvEBT on a bond for delivery of Tobacco, on the 24th of Fe» bruary, 1781. Payment in tobacco had been made at divers times up to the year 17S9; and the tobacco thus delivered, though a smaller quantity than was to be delivered, was of more value in money, estimating it by the prices it bore at the several times of delivery, than the whole that was due by the bond was worth on the 24;h of February, 1781, with the interest thereon. Evidence was given that the executor of Gilchrist and the plaintiff corresponded on the subject of a settlement, till the death of the executor,which was in 1801. The act of 1715, ch. 48, sec. 9, was pleaded, and payment.

Taylor, Judge.

As to the act of 17Í5, I think it does not take place in such a case where the plaintiff claims immediately, and keeps it up by a regular correspondence and demand of payment, although seven years and more are expired after the death of the debtor before the commencement of the creditors action. As to the mode of valuing the tobacco, the general rale, no doubt is, that it shall be estimated as worth when it becomes deliverable ; but here it is proved, that at the time when the tobacco should have been delivered, it was the custom and practice of merchants to keep a tobacco account, and to give credit in tobacco, not in its value in money ; and if a balance of tobacco remained, to charge as much money as it was worth when it became payable. If the jury are satisfied of this, then they may estimate accordingly, because the custom will control the general rule of law.

Verdict and judgment accordingly.