Howard ex rel. Brady v. Stutts, 51 N.C. 372, 6 Jones 372 (1859)

June 1859 · Supreme Court of North Carolina

51 N.C. 372, 6 Jones 372

JOHN HOWARD, to the use of A. G. BRADY v. ABRAM STUTTS.

The admissions of an agent, while he has the business in hand, are competent against the principal.

Whether an offife, who has a judgment and execution in his hand, and who made default in the collection, so as to subject him to an action, is at liberty to pay the amount to the creditor and, treating the matter as a purchase, have the debt collected for his own use, — quere?

Actioh of debt on a former judgment, tried before Heath, J., at the last Spring Term of Moore Superior Court.

This was a suit commenced by warrant, and carried by appeal to the Superior Court. It appeared that in 1846, the plaintiff, placed in the hands of one John Dunlap, a deputy sheriff, a bond for $10 47^ for collection, and the officer caused a warrant to he issued on the same against the defendant, and returned the same, executed by him, upon which a judgment was obtained for the amount of the bond and an execution taken thereon; that upon the paper containing the judgment and execution was endorsed, in the hand writing of Dunlap, a credit for $4 56, dated July, 1848; thalj in June, 1854, another warrant was issued in the name of the plaintiff to revive the said former judgment, which was also executed by the said Dnnlap as deputy sheriff, the claim being yet in his hands. A judgment was then rendered according to the former judgment, neglecting, or overlooking the credit of $4 56 endorsed on the former judgment, and executions issued thereon, but it did not appear what was done with them; that thereafter, A. G. Brady, who now seeks to collect the debt in the name of of the plaintiff, obtained it 'from Dunlap the deputy; that in March, 1856, the present warrant was issued at the instance of Brady to renew his former judgment, purchased as aforesaid, upon which a judgment was rendered allowing the endorsed credit of 1848, from which the defendant appealed. The plaintiff having proved his former judgment, closed his case.

The defendant introduced one Bitter, a deputy sheriff, who executed this warrant. Tie proved that before returning the warrant,’he notified the plaintiff, Howard, of the time and place, and plaintiff told him he had no claim against the defendant ; that he had received his money, or had been paid his'debt, or words to that effect. The defendant then offered in evidence the receipt or credit in the hand writing of Dunlap, the officer, for $4 56, as a payment of so much of the debt. This was objected to by plaintiff’s counsel, and excluded by the Court. It was then offered as an admission by Dunlap as plaintiff’s agent, which was rejected, the Court remarking, that in view of the present state of the proceedings, the admission of the plaintiff, if he had been present making the same, would be incompetent, and the credit could not be allowed unless with the plaintiff’s consent. The defendant then introduced a witness, and offered to prove that Dunlap, the deputy sheriff, who had the debt in his hands, and while he so had it, admitted lie had received some other amount of money from the defendant in payment thereof, and that he gave the defendant a receipt therefor, to be applied in payment or part payment of this debt, but defendant lost it, and that he, Dunlap, then had it among his papers. This evidence was objected to, and rejected by the Court. Defendant again excepted.

The plaintiff then offered to examine Dunlap, -which was objected to by defendant. lie then tendered Dunlap to defendant to be examined by him, which he declined to do.— The Court charged the jury, that they could not look behind the judgment now declared on, and allow the credit endorsed on the former judgment; that they should consider the evidence offered by-the defendant to prove the payment of the debt; if, from the testimony of Ritter, they were satisfied the plaintiff received payment of this debt from the defendant, then they should render a verdict for the defendant; but if from the testimony they were satisfied plaintiff received his money from Dunlap, or any other person than the defendant, such advancement of the money would operate as a purchase of the debt by the person advancing the money, and not as a payment of the debt, and the plaintiff would be entitled to their verdict. Defendant excepted. Verdict for plaintiff.— Judgment. Appeal.

McDonald, for the plaintiff.

KeTkj, for the defendant.

Pbaesoít, C. J.

We concur with his Honor in the opinion, that no payment made prior to 1854, the date of the judgment now sued on, was admissible. That judgment concluded up to the time of its rendition, and the defendant lost the benefit of any payment previously made, under the rule “good matter must be pleaded in apt time, due form, and proper order.” Put, as we understand the case, the admissions of Dunlap, which the defendant offered to prove, had reference to a payment made after the judgment in 1854, and so, did not come within the principle. This is to be inferred from the connection in which the point is stated, and particularly from the fact that the plaintiff offered to allow Dunlap to be examined in regard to this alleged payment. Yiewed in this light, it was error to reject the evidence. The admissions of an agent, while lie has the business in hand, are competent against the principal; a receipt is merely an admission reduced to writing.

Ilis Honor was of opinion that an officer who has held a judgment in hand for several years, so as to be liable to an action for a neglect of duty, is at liberty to pay the amount to the creditor, and, treating the matter as a purchase, have the debt collected for his own benefit. Whether it be not against public policy to allow an officer, who has taken judgment and has, or ought to have sued out an execution, to evade, in this manner, the effect of his neglect of duty, is a consideration into which we will not enter, and is alluded to simply to say we express no opinion in regard to it. Venire de novo.

Pee CuRiam, Judgment reversed.