Gregory v. Dozier, 51 N.C. 4, 6 Jones 4 (1858)

Dec. 1858 · Supreme Court of North Carolina

51 N.C. 4, 6 Jones 4

MAJOR GREGORY v. ABNER DOZIER et al

A covenant to pay a sum of money in a good note on demand, is not met by an offer to deliver to the covenantee a sealed instrument, payable twelve months after date, made by strangers to a stranger, or bearer, and not endorsed.

A bond or sealed note made payable to A B, or bearer, can only pass by a ' delivery to, and an assignment by, the obligee, under the statute: Revised Code, ch. 13, sec. 1.

This was an action of covenant, tried before Shephekd, J., at the last Fall Term of Camden Superior Court.

The plaintiff declared upon the following sealed instrument, viz:

“ For value received, we, or either of us, promise to pay to Major Gregory or bearer, one hundred and three dollars, in a good note on demand. January 12th, 1857.”

(Signed and sealed by the defendants.)

The execution of the paper, and a demand for a good note previous to the bringing of the suit having been proved ; in defense it was shown, that when the plaintiff made the demand, the defendant, Dozier, offered to the plaintiff the following instrument, viz:

“ $100. Twelve months after date, we, or either of us, promise to pay to E. L. Dozier or bearer, one hundred dollars, value received.

Samuel Tillett, [seal.]

John B. Tillett, [seal.]”

The defendant offered to pay, in money, the difference between the sums called for in the two instruments. The plaintiff refused to take the note thus offered, alleging that it was not good, but offered to do so if the defendant, Abner Dozier, would endorse it, which was declined by him. The note was not endorsed by E. L. Dozier, nor did appear ever to have been delivered to him.

Evidence was then produced, to show that the bond, or sealed note, was “ good.”

The Court being of opinion that there was nothing shown by the defendants to prevent the plaintiff from recovering, so instructed the jury, who accordingly rendered a verdict for the amount with interest. Judgment and appeal by the defendants.

Pool and Jordan, for the plaintiff:

Hines, for the defendants.

Battle, J.

We concur in the opinion expressed by his

Honor, in the Court below, that nothing has been shown by the defendants to prevent a recovery by the plaintiff. The obvious meaning of the covenant was, that the defendants were, either jointly or severally, to give to the plaintiff, upon his demand, a good note for the specified amount, payable to himself, or at least so endorsed to him, that he could have an immediate remedy at law, in case it should be necessary for him to resort to an action to enforce the payment of it. The bond, or sealed note, which the defendants tendered in discharge of their obligation, (to say nothing of its not being for the proper amount) was made payable twelve months after date, and upon which, therefore, the plaintiff must have, for that time, been deprived of a remedy.

Another objection to it was, that without proof of a delivery of it to E. L. Dozier, the obligee, and an endorsement by him,'the plaintiff could not have sustained any action upon it at all. See the case of Marsh v. Brooks, 11 Ire. Rep. 409, where it was decided that although a bill, or promissory note, may be payable to A B or bearer, or to the bearer, yet a bond cannot. That, being a deed, must be-made to some certain obligee, to whom, or for whom, it may be delivered, and then no person can claim the bond but by the assignment of the obligee under the statute; Rev. Code, ch. 13, sec. 1. See also Latham v. Respass, Busb. Rep. 138. The judgment must be affirmed.

Pee CüRiAir, Judgment affirmed.