Councill v. Walton, 39 N.C. 155, 4 Ired. Eq. 155 (1845)

Dec. 1845 · Supreme Court of North Carolina

39 N.C. 155, 4 Ired. Eq. 155

JORDAN COUNCILL vs. A. Y. WALTON & AL.

Where there are two defendants in a hill of injunction, and one of them answers that he is ignorant of the facts charged, the Court will not hear a motion to dissolve the injunction, until the answer ef the other defendant is put in.

Appeal from an interlocutory order of the Court of Equity of Ashe County, at the Fall Term, 1845, his Honor Judge Bailey presiding, -which order directed the injunction to be continued, refusing a motion to dissolve it.

The following case was presented by the pleadings:

The plaintiff charges, that, in February 1839, he and one David E. Bowers, his partner, became indebted to the mercantile firm of A. Y. Walton and J. W. Y. Walton, of Charleston, South Carolina, which was conducted in the name of J. W. Y. Walton, and gave the note of the firm for the amount, to-wit, 1344 65. At the time of giving this note, the plaintiff transferred, by endorsement, to the two 'Waltons, a note which he held on one John Clark for two hundred dollars, to be applied, when collected, in part discharge of his note:- the said Clark being a citizen of Charleston. In the year 1842, he was again in Charleston, and the firm of Walton and Walton having been dissolved, he was called on by their clerk to give a new note, which he at first 'declined doing, unless he received a credit for the Clark note, which the agent of the Waltons declined giving, as he knew nothing about it; and the plaintiff at his earnest solicitation and repeated assurance, that he would see his principals and enter the credit, gave his note for the full amount, having full and entire confidence in the integrity of J. W. Y. Walton, with whom he had been doing business many years." The principals were both absent from the city at that time, and John Clark assured the agent, that he had paid his note to the principals at maturity. In 1843, being in Charleston, he endeavored to have the matter arranged, but J. W. Y. Walton being dead, and A. Y. Walton too unwell to do business, he failed in doing so. Thomas Walton, the defendant, is the administrator of J. W. Y. Walton, and, having obtained possession of the note, brought suit against him and obtained judgment for the full amount, principal and interest. In March, 1844, previous to the said judgment being obtained, A. Y. Walton, at his instance, wrote to the defendant, Thomas Walton, to suspend the collection of the $200, as there was an entry, on the books of the firm, of the transfer of Clark’s note to them. At the time the judgment was obtained, as he was informed by his counsel, the letter of A. Y. Walton was mislaid, and not being able to ascertain the exact amount of the credit, it was agreed by his counsel, that the judgment should be taken for the full amount, upon the promise of Thomas Walton, that, when the letter was found, the credit should be entered; afterwards, when the letter was found, the defendant, Thomas Walton, refused to permit the credit to be entered, unless the plaintiff would produce a receipt from A. Y. Walton. The judgment has all been paid but the amount of the Clark note. The plaintiff prayed and obtained an injunction for that amount.

The defendant, A. Y. Walton, did not answer. The defendant, Thomas Walton, while he does not admit that A. Y. Walton was a partner with J. W. Y. Walton, does not deny it, but does admit that most of the capital was advanced by A. Y. Walton, and, that when the establishment was dissolved, it was agreed between the partners, that A. Y. Walton should take all the debts due the firm, &c., and pay to J. W. Y. Walton a certain amount of money for his interest in, and services in conducting, the business. He admits the death of J. W. Y. Walton, and that he is his administrator ; the bringing of the aciion and the obtaining of the judgment. He admits, that, * while the suit was pending, the letter of A. Y. Walton was shown to him by the defendant’s counsel, who j-equired that a credit should be entered for the Clark note, which he refused, upon the ground that he was not so instructed by the letter of A. Y. Walton. He denies all knowledge of the Clark note, or that he agreed, when judgment was obtained, to allow the credit when the letter was found, but that he did agree, if an absolute receipt could be procured or produced from the said A. Y. Walton, that it should be allowed. Denies any such receipt has been produced, and admits the payment by the plaintiff of all the judgment, except the amount of the Clark note.

Upon the coming in of the Answer, a motion to dissolve the injunction was refused; from which decree the defendant appealed.

Dodge, for the plaintiff.

Avery and Boyden, for the defendant.

Nash, J.

This case is now before this Court on the motion to dissolve the injunction. The equity of the plaintiff is so manifest from the defendant’s answer, that we do not hesitate to refuse the motion. The bill charges, that A. Y. Walton and J. W. Y. Walton were partners. This averment is not denied by the defendant, but he answers it by saying, that “ A. Y. Walton was not known or recognized as a partner.” We consider the answer in this particular, as evasive and disingenuous. Again, he admits, that most of the capital was advanced by A. Y. Walton, upon some arrangements between them, the exact nature and terms Avhereof, he does not know; and, further, when the establishment was broken up, that the amount of the sale of stock, áse., the debts due the said concern, and all the effects appertaining thereto, should be taken and belong to A. Y. Walton. It is impossible not to see from the answer, that the two Waltons were partners. B3r the law, A. Y. Walton, as surviving partner, was entitled to the note of the plaintiff, and he was entitled to it also, by the agreement, as set forth in the answer. As, however, it was made payable to J. W. Y. Walton singly, the action was well brought in the name of his administrator ; but in collecting it, the defendant, Thomas Walton, was the agent of A. Y. Walton, who had a right to control and direct him in so doing. He is informed by A. Y. Walton, by letter, before the judgment is obtained, that upon looking over our ledger, there is a memorandum of the payment of the Clark note, and direeling liim to stay collecting the amount of the two hundred dollars. This direction from his principal, if not at law, at least so considered in this Court, he refuses to obey, upon the flims}' pretext that it is not an absolute receipt. We consider the answer as confirming the plaintiff’s equity. And the defendant, T. Walton, had no right to ask the Court to dissolve the injunction upon his answer alone, as he professes to know nothing about the matter. The other defendant does not answer, and the matters upon which the plaintiff’s equity rests, are within his knowledge, and, before the dissolution of the injunction, the plaintiff has a right to his answer, and the production of the books, in which the entry of the receipt of the Clark note was made.

The interlocutory decree of the Court below is affirmed, and the defendant, Thomas Walton, must pay the costs of this Court.

Per Curiam.

Decree accordingly.