Gates v. Pollock, 50 N.C. 344, 5 Jones 344 (1858)

June 1858 · Supreme Court of North Carolina

50 N.C. 344, 5 Jones 344

GATES & BROWN v. WILLIAM A. J. POLLOCK.

Where one, of two partners, who had entered into a contract to do a job of work according to specifications, executed an instrument, under seal, certifying that the contract was forfeited on their part, and that there had been a settlement and payment to him, of a certain sum as a “ present," it was Held that such instrument amounted to a release, and took away the cause of action as to both partners.

AssuMpsit, tried before Caldwell, J., at tbe Spring Term, 1858, of Lenoir Superior Court.

The plaintiff declared upon a special contract, in writing, executed 1th October, 1856, and in all the usual counts in assumpsit.

It was stipulated in the contract, that-plaintiff should mix the mortar, do the plastering in the best style, at ten cents the yard, and finish the job in eight weeks : on the part of the defendant, that he should furnish all the materials, — furnish hands to wait on the workmen, and ¡ray the plaintiffs ten cents per yard.

It appeared, in evidence, that the plastering was not executed within the time agreed on, by reason of defendant’s not furnishing materials, and hands to wait on the workmen, and that the plastering was not done in the best style, but was a fair piece of work, and was worth, in the opinion of the witness, from ten to twelve and a half cents per yard. The suit was commenced on the 9th day of December, 1856, and on that day, it appeared on the part of the defendant, that Drown, one of the plaintiffs, executed to defendant an instrument, in writing, which is as follows :

“ This is to certify that, I, W. II. Brown, being satisfied that the obligation that he and John B. Gates gave W. A. J. Pollock, is forfeited by Brown and Gates, and I, Brown, give this receipt in full settlement with the said ~W. A. J. Pollock, for one hundred and twenty-five dollars, which the said Pollock makes a present to me, W. II. Brown. December 9th, 1856. W. II. BeowN, [seai.]”

It appeared also, that defendant took possession of the bouse and used it as a hotel, and for other purposes. And it also appeared in evidence, that plastering of the best quality would be worth fifteen cents per yard. The defendant insisted that the plaintiffs could not recover, as there was a special contract, and the plaintiffs had not complied with it; and that they could not recover on the quantum meruit count, because there was a special contract. And the defendant also insisted, that the instrument executed to him by said Brown, was a release, or if not, a bar to the action, under the plea of accord and satisfaction.

The Court charged the jury, that according to the testimony, the plaintiffs had not complied with the special contract, and could not, therefore, recover on it.. But if they believed that defendant took possession of the house, and used it, the plaintiffs were entitled to recover whatever their work and labor were worth; that they ought not, in assessing the damages, to go beyond ten cents per yard for the plastering, but might go below that sum. And the Court also charged, that the paper-writing, offered in evidence, was not a release, and did not support the plea of accord and satisfaction, but they might allow it as a payment of $125. Defendant excepted

The jury returned a verdict for the plaintiffs, and allowed the defendant the $125, as a payment.

/Strong, for plaintiffs.

Mediae and Stevenson, for defendant.

Battle, J.

The instrument offered by the defendant cannot be taken in any other sense, than as a release by the plaintiff, Brown, of all his interest in the contract for the work and labor done by him and his partner on the house of the defendant. If he alone had made the contract and performed the work, he could not have maintained an action upon it, in the face of such an instrument. See Stinson v. Moody, 3 Jones’ Rep. 53, and the authorities therein referred to. The defence would be clearly admissible under the plea of the general issue, non assumpsit. If one of the plaintiffs be barred, tiren the present action cannot be maintained in the name of himself and his partner, as it is too well settled to require a reference to any authority, that if there be too many plaintiffs, the suit must fail, though some of them may have a good cause of action. This majr be a hard case upon the plaintiff, Gates, for it is possible that there might have been some collusion between the defendant and the other plaintiff to deprive him of his just rights. If so, it may be a question whether lie can obtain relief in. another tribunal. As to that, we give no opinion, it being our duty in the present case, only to say that the action cannot be maintained.

Pee Cueiasi. The judgment must be reversed, and a new trial granted.