Dalrymple v. Sheppard, 38 N.C. 74, 3 Ired. Eq. 74 (1843)

Dec. 1843 · Supreme Court of North Carolina

38 N.C. 74, 3 Ired. Eq. 74

JAMES DALRYMPLE & AL. vs. ANDREW SHEPPARD & AL.

A.-having a judgment at law against B. a contract was made between them, by which, as B. understood it, he was to pay the amount on a note or bond due by A. to another person. B. accordingly so paid the amount and had a credit endorsed on:the note of A, for the amount of the said judgment. But A. declaring his understanding to be that B. was to pay the whole amount of the note which was greater than that of the judgment, and alleging feat he claimed no1 benefit from fee credit which had been placed on the note, issued an execution on his jndgment, wherenpon B obtained an injunction. Held, upon these facts appearing in the bill and answer, that the conrt would not dissolve the injunction upon motion, but would continue it antil the hearing.

Appeal from'an interlocutory order dissolving- the injunction at Fall Term, 1833, of Moore Superior Court of Equity, his Honor Judge Battle presiding.

The plaintiffs state in their bill, that two judgments were recovered by the defendant Sheppard to the use of the defendant Curry in Moore County Court against the plaintiffs Dalrymple & Cox, in which Dalrymple was the principal debtor — that Curry was indebted at the time to one Mc-Neill’s executors in a sum of more than $>600 ; a sum much larger than the amount of the two judgments — and that it was agreed between Curry and Dalrymple, that, if Dalrymple would procure a credit, to the amount of the two judgments to be endorsed on Curry’s note in the hands of Mc-Neill’s executors, it should be a satisfaction of the two judgments — that the plaintiffs did procure the said credit to be endorsed on Curry’s note by McNeill’s executors — and that they gave the said executors their own note for the amount thus endorsed as a credit on Curry’s note. The bill further sets forth, that Curry, when informed of what had been done, refused to enter satisfaction on the judgments, alleging that the plaintiffs were, by the agreement, to pay off and extinguish his entire note in the bands of McNeill’s executors, before he was to eater satisfaction or release the said judgments ; which allegation the plaintiffs say is not true.— and that Curry has since issued executions on the judgments, and caused them to be levied on two tracts of land, and threatens to have them sold. The bill then prays for an injunction.

The defendant Curry put in his answer, and therein he admits all the material charges of the bill j except that he says, he offered to Dalrymple, that; if he would take up the note, which McNeill’s executors held against him, Curry, (which he admits was larger than the judgments) and surrender the said note to him, he would then cause satisfaction to be entered on the said two judgments. Whereupon, he says, Dalrymple left him, without saying anything more on the subject — and that, afterwards, instead of taking up his note, the plaintiffs, without his knowledge, made an arrangement with McNeills executors, whereby a credit of five hundred dollars was entered on his, Curry’s, note in their hands. The defendant, Curry, further says, that he now claims no benefit of this credit; and that, if he is bound to admit it, the amount of his two judgments, costs and sheriff’s commissions was five hundred and thirty dollars — that thirty dollars are still due him on the said judgments. The said defendant denies that he ever made the agreement set forth in the bill, or any other agreement, except as above stated.

On this answer coming in, the court, on the motion of the defendant, dissolved the injunction, in toto ; and the plaintiffs, by permission of the court, appealed to the Supreme Court.

Winston for the plaintiffs.

Strangs for the defendants.

Daniel, J.

The defendant, Curry, has got credit for $500 on his note to McNeill. In.his answer he says, indeed, that he does not claim the benefit of that credit. But he has not caused the endorsement of that credit on his note to be expunged, nor has he procured the plaintiffs’ note to Mc-Neill’s executors to be given up: he has as yet the benefit of the said credit. And it seems to us, that it would be improper¡ ¡n the present state of the case, to permit him to collect the of the money on his two judgments. The defendant, Curry, contends, that the arrangement made by Dalrymp|e w¡th McNeill’s executors, was voluntary and without his request or authority: and, therefore, if the plaintiffs should be placed in any difficulty in consequence of the issuing of his executions on the two judgments, that difficulty will have been brought about by the improper conduct of Dalrymple himself. But the answer admits there was a com'munication between the parties, whereby Dalrymple might satisfy the judgments against himself by discharging Curry from his debt to McNeill, either pro tanto or entirely. Whether the agreement was for the one or the other, is a question upon which the parties are at issue. But admit that, in fact, it was the latter: It is yet clear, that Curry ought not to avail himself of Dalrymple’s mistake ot the agreement, or his inability to comply literally with it, by taking the benefit of what Dalrymple has done toward the performance of the agreement, and, at the same time, to raise the sum lrom Dalrymple a second time on execution. Curry has a credit with McNeill for $500, paid for him by Dalrymple; and, therefore, the latter is entitled to credit therefor on his debts. But, it is said, that Dalrymple was to pay $30 or $4.0 more, before the judgments against him were to be deemed satisfied. If that be so, it will form a good reason why he should yet be decreed so to do, when the agreement shall have been established by proofs, and, as established, appear to be fair and legal. But until the case can be heard upon the proofs, the injunction should stand as a necessary protection to the plaintiffs from being compelled to pay again what they have already paid for Curry. Against this, it is said, that the answer disclaims the benefit of the payment to McNeill. But-that is manifestly a subterfuge; since, as has already been stated, he actually has the credit, and the plaintiffs,'in his stead, are actually bound to McNeill for the money. The contract must either be rescinded or executed, in toto; and, as that has not been done by the parties, it can now only be done by the court on the hearing — to which time the injunction should be kept up, cept as to the sum of thirty dollars. The decree was therefore erroneous, and must be so certified j and the defendants must pay the costs in this court.

Per Curiam, Ordered accordingly.