Carrier v. Jones, 68 N.C. 130 (1873)

Jan. 1873 · Supreme Court of North Carolina

68 N.C. 130

H. D. CARRIER v. J. JONES, J. M. CRATON, JOHN GILKEY and M. H. KIRKPATRICK, Adm’r, &c.

"The rejection of ■evidence not material to maintain or disprove the point in In issue, is no ground for a new trial.

At is error in the Judge below not to instruct the jury, that a receipt, produced as evidence and relied upon by the defendant to whom it was given, to operate as a discharge of him from all further liability, was not such a reMease, nor did it free the defendant from the payment of whatever balance of vthe debt remained unpaid.

This 'is the plaintiff’s appeal in the foregoing case. No facts, except those therein stated, were elicited upon the trial; and the ground of the plaintiff’s appeal, as appears from the transcript, and as is set out in the case wherein the defendants appealed, is, for the rejection of certain evidence offered by him on the trial. From the decision of his Honor, rejecting the evidence, the plaintiff appealed.

No counsel for the appellant in this Court.

Argo & Hams, and Dupre, contra.

Boyden, J.

The opinion in the case of the plaintiff against Jones, supra, is decisive of this case, and must govern it. In that case it is decided, that the receipts to H-ilkey and Kirkpatrick did not release or discharge Jones or Kirkpatrick, nor did they discharge the parties to whom they were given. The rejection of the evidence of the plaintiff constituted no error as it was wholly immaterial, and in, truth amounted to nothing more than what appeared by the receipts.

But his Honor was in error in not instructing the jury that the receipts of the defendants did not discharge them from the balance still due, and only entitled them to the credit for the amounts stated in -the receipts.

There is error. This will be certified to the end that a new trial may be had,

Feb. Curiam.

Venire de novo.