Ledbetter v. Morris, 46 N.C. 545, 1 Jones 545 (1854)

Aug. 1854 · Supreme Court of North Carolina

46 N.C. 545, 1 Jones 545

RICHARD LEDBETTER, ADMINISTRATOR OF REUBEN SEARES, v. ISRAEL MORRIS.

Where a note is agreed to be discharged and satisfied, by the acceptance of note* upon other persons, which are alleged to have been insolvent, and to have been imposed upon the plaintiff, by the .fraudulent misrepresentations of the agent of the maker of the original note, in a suit against such agent for the fraud, a receipt, given at the time of this transaction against the note agreed to be delivered up ought to be produced on the trial, and evidence of its contents in the first instance is not admissible.

ACTION on the case for a fraud in passing insolvent notes,' tried before bis Honor Judge Caldwell, at tbe Fall Term, 1853, of McDowell Superior Court.

This was an action on the case to recover damages for passing to the plaintiff’s intestate notes on certain individuals whom he knew to he insolvent, and whom he represented as solvent. The plaintiff’s intestate had a note on Lewis, Green and Bright, for §327, upon which he bad brought suit bj attachment, and which, at the time spoken of, was in the Clerk’s Office, at Rutherford-ton. The defendant, at the instance of Lewis, went to the house of the plaintiff’s intestate, carryingwith him these and other notes, furnished by Lewis, amounting to §1000, all on insolvent persons, and proposed to him to take certain notes on other persons, in lieu and discharge of the one owing him, and by falsely representing these notes to be good, and on solvent persons, prevailed on him to make the trade. On this arrangement being agreed upon, the plaintiff’s intestate executed a receipt against the note, which he agreed to give up, and on the trial was proceeding to give parol evidence of the contents .of such receipt, without notifying the defendant to produce it or accounting for it, when the same was objected to, but admitted by the Court. To which defendant excepted.

Verdict for the plaintiff, and appeal by the defendant.

J. Baxter, and Gaither for plaintiff.

Bynum and W. W. Woodfin, for defendant.

Nash, C. J.

On the trial of this ease below, the plaintiff was permitted to give parol evidence of a receipt, without notice to the defendant to produce it, or otherwise accounting for it; in this there is error. The case has been likened to a receipt for the payment of money. In such case it has been hold, that the receipt is not conclusive against him who gave it; that ho may show he never received it. Stratton v. Restall and others, 2 Term. 366; for parol proof is of as high' nature as the receipt. Southwick v. Hayden, 7 Cowen 335 ; Starkie on Ev. 1044. A mere receipt, not under seal, cannot operate as an estoppel, but is mere evidence of the fact to be submitted to the jury, and capable of being rebutted by the other circumstances of the case. Alme v. George, 1 Camp. 392; Sampson v. Cooke, 7 E. C. L. R. 205 ; Latour v. Bland, 3 E. C. R. 392; Star, on Ev. 1275. These cases show, that where a receipt for the payment of money is given, the payment may be proved without the production of the receipt, and if produced, it maybe contradicted by oral testimony. The receipt ..ere is not for the payment of money, but is in the nature of a contract. The plaintiff’s intestate held a note for $827 upon Lewis, Green and Bright, dated in 1841. In 1843, Lewis engaged the defendant to take to the intestate notes to the nominal amount of $1000, which he owned and held upon different persons, all of whom were insolvent. Several of these notes, to the amount of the one held by the intestate, he was induced to take from the defendant, upon his assurance the debtors were perfectly solvent and able to pay. Before that time, the intestate had commenced an action by attachment against the obli-gors on the note due him, and the note was then in the elerk’g office. So that the parties were actually making a compromise, and we may well presume that its terms were set forth in the receipt. It is well settled, that when the terms of' an agreement are reduced to writing, the document itself is the only evidence the law will recognise, so long as it exists. • Star, on Ev. 1002. As this point decides the case for the present, wo give no opinion upon the other and more important one.

There was error in the reception of the parol evidence objected to. The judgment reversed and a venire de novo.

Per Curiam. Judgment reversed.