Ward v. Griffin, 38 N.C. 150, 3 Ired. Eq. 150 (1843)

Dec. 1843 · Supreme Court of North Carolina

38 N.C. 150, 3 Ired. Eq. 150

JANE C. WARD vs. BRYANT H. AND JOSEPH B. GRIFFIN.

It is in general no objection to a witness that he is the agent of the party who offers him — more especially is it no objection when the object of his evidence is to prove the payment of money by the principal to himself.

Cause transmitted from the Court of Equity of Washington county, at Spring Term, 1843.

It appeared from the bill that, in 1835, the plaintiff by her agent Thomas S. Armistead, sold to the defendants a tract of land and agreed to convey the same in fee, at the price of $800 ; payable in three equal instalments of $266 66§ on the 1st of January of the years 1836, 1837 and 1838. The defendant entered into possession and in March, 1836 paid $221 18 in part of the first instalment; and, as the plaintiff alleges, the residue of the purchase money and interest remains unpaid. The bill was filed in August, 1841, and states that the plaintiff had executed a deed and tendered it to the vendees and demanded the payment of the balance due, which they refused and prays a decree for specific performance.

The answers admit the contract and insist that only the last instalment of $266 66§, that fell due in 1838, remaining unpaid; and state that the plaintiff had so admitted repeatedly, and had executed a deed, and offered to deliver it upon payment of that instalment and interest; and the defendants submit to receive the deed and pay that sum and interest.

The only dispute between the parties being as to the payments of parts of the purchase money, it was referred to the master to enquire what payments had been made and to state the sum due to the plaintiff upon the foot of the contract : And he made a report in conformity to the bill, finding only the one payment of $221 18 in March, 1836, and the amount due the plaintiff for principal and interest up to the 1st of January, 1844, to be $828 25. To this report the defendants took several exceptions varying in form, but all in substance insisting, that the report is not supported by the proofs, but is against them. The particular grounds for the exceptions will be found in the opinion of this Court.

Iredell for the plaintiff.

J. H. Bryan for the defendants.

Ruffin, C. J.

The court has examined the evidence, and has no hesitation in concurring in the opinion of the master.

It appears, that, at the time the sale was made for the plaintiff1, Thomas S. Armistead also sold to the defendants a piece of land belonging to himself and Robert Armistead; and that payments were made by the defendants to Thomas S. Armistead as the common agent of all the vendors ; and that he divided the sums received from time to time among the vendors, in proportion to the amount of their several debts. In that way the plaintiff received from Mr. Armistead the sums due to her in January, 1836 and 1837. After-wards a settlement took place between the defendants and Thomas and Robert Armistead, in which the latter gave the Griffins credit on the debts to themselves for only their shares of the several payments, after applying rateable parts thereof to the satisfaction of the plaintiff. But the defendants insisted that the money should not be thus applied, and that they had intended the payments to be exclusively on the debts to Thomas and Robert Armistead, and not on that to the plaintiff, except as to the first payment of $221 18, before mentioned. And the matter was then so settled, by applying all the payments to the debts to the Armisteads ; and the present plaintiff sccordingly accounted with them and repaid to them the sums she had before received.

While the money was in the plaintiff’s hands, as payments to her, and before she knew that the defendants raised an objection to the application of any part to her debts, the plaintiff mentioned, and also upon her examination as a witness stated, that she had received the two first instalments for the land, and the third was all that remained unpaid; and upon those declarations alone, the defendants rely as evi°f the payments claimed by them.

It is plain that the defence is neither founded in law nor The deciarations oí the plaintiff were, at the time they were made, perfectly true, as the plaintiff had every reason to think. But subsequent occurences, and those at the instance of the defendants themselves, changed the state of things altogether, and made those payments, which the plaintiff thought were made to her, payments to other persons; and the plaintiff, in accordance with the directions of the defendants, paid over the money to those persons. Consequently, it is no longer a payment to her.

But it is said, that the payments, after having been once applied by the plaintiff, cannot be rejected by her. Certainly not by her alone; but all the parties concurred to the new application in this instance.

It has also been objected, that Thomas S. Armistead is not competent as a witness, as he was the plaintiff’s agent. But that relation does not generally affect the competency ; and certainly cannot do it here, since the object oí his evidence is not to discharge himself by proving a payment by him for or to his principal, but to charge himselij by admitting a payment from his principal to himself for and on account of the debt to him from the defendants.

The exceptions must be over-ruled, and the report confirmed ; and decree for the plaintiff, with costs.

Per Curiam, Decree accordingly.