Witherington v. Phillips, 70 N.C. 444 (1874)

Jan. 1874 · Supreme Court of North Carolina

70 N.C. 444

J. G. WITHERINGTON v. R. L. PHILLIPS.

A receipt for a certain sum, in payment of a lost or mislaid note, discharges only so much of said note as such receipt amounts to.

(.MoKemie v. OuThreth, 66 2ST. C. Rep. 534, cited and approved.)

Civil actioN, for the recovery of a note commenced in a Justice’s Court, and carried by appeal to his Honor, Judge Cla/rlce, at Chambers in GreeNE County.

The note sued on was for $12.874- payable within six months after March 24th, 1857. The defendant relied upon the following receipt:

“Received of R. S. Phillips, twelve dollars and fifty cents in payment of one note which was given to me as Adm’r of Bar-ham Heart, dec’d, by Joseph Turnage, principal, and R. S. Phillips, surety, which note is lost or mislaid.”

His Honor held that the receipt extinguished the note, and gave judgment against the plaintiff for the costs; from which judgment, the plaintiff appealed.

Gray, for appellant.

No counsel contra in this Court.

RodhaN, J.

The case of McKenzie v. Culbreth, 66 N. C., 534, settles that the payment, evidenced by the receipt of 1st of November, 1865, being for an appreciable sum less than the amount due on the note, did not discharge the note in full, but was only a payment pro tanto. The payment is not even stated to be in full in the receipt. The Judge erred therefore in holding it a discharge in full. Judgment reversed and plaintiff will recover in this Court the residue of the note after deducting the payment. It is certainly to be regretted that so much costs should have been incurred for a pitiful claim of about thirty-seven cents.

Pee Cueiah. Judgment reversed.