The plaintiff never acquired the legal title to the bond. If any promise is implied, it is of, course to pay the legal owners. This proposition is too plain to admit of discussion.
Per Curiam. Judgment affirmed.
Dickey v. Johnson, 44 N.C. 405, 1 Busb. 405 (1853)
Aug. 1853
·
Supreme Court of North Carolina
44 N.C. 405, 1 Busb. 405
JAMES DICKEY vs. ROBERT JOHNSON.
A. being the bolder of a single bond, made by B. payable to C., and passed by him to A. without endorsement, upon the representation of B., that he was entitled to a credit thereon, admitted the credit, took a new note for the residue and surrendered the old one. Afterwards A. brought assumpsit against B., to recover the sum allowed as a credit, on the grouud that it was not due and had been allowed by mistake: — Held, That he could not recover, because if any promise of B. was to be implied for its repayment, it was a promise to the legal owner of the first bond.
This was an action of assumpsit, brought to recover back the sum of ninety-four dollars, alleged to have been paid to the defendant, or allowed to him on settlement by mistake. It appeared upon the trial, that the plaintiff purchased of Moses T. Abernathy, Turner T. Abernathy and Sterling Abernathy a bond made to them by the defendant for $400 ; and upon an action brought thereon in the name of the obligees (there being no en*406dorsement) to the use of the plaintiff, the same was, at the instance of Moses T.. Abernathy, dismissed. The plaintiff then filed a bill in equity against the defendant and said obligees in the bond, but the name of the plaintiff having been erroneously stated therein as David, the bill was dismissed. A witness was then introduced, who testified that before the suit in equity was dismissed, the defendant told him that the counsel who had the management thereof, as well as said suit at law, had settled the diflicul-tjr — that said counsel had said to him that he only sought j ustice and right, and if he, the defendant, would satisfy him that he was entitled to a credit on the bond of $94, which lie had been insisting upon, that the credit should be endorsed accordingly— and this was done; whereupon the defendant executed a new bond payable to the plaintiff for the balance, and took up the old bond. Evidence was offered on both sides in regard to the right of the defendant to the said credit of $94, in his settlement with the plaintiff’s counsel. There was no evidence of any express promise to pay the plaintiff anything in the event of a mistake.
His Honor, Judge Caldwell, before whom the case was tried, at Lincoln, on the last Spring Circuit, charged the jury, that if the credit of $94. was obtained on the settlement with plaintiff’s counsel, through fraud or mistake, the plaintiff was entitled to their verdict, but by consent of parties, his Honor reserved the question of the plaintiff’s right to recover upon the matter of law. There was a verdict for the plaintiff; but his Honor on consideration of the question of law reserved, being of opinion that the plaintiff’s remedy, if he had any, was in a Court of Equity, set aside the verdict and entered judgment of nonsuit, from which the plaintiff appealed.
Craige and Hoke, for the plaintiff.
Guión and Thompson, for the defendant.