Wait v. Williams, 77 N.C. 270 (1877)

June 1877 · Supreme Court of North Carolina

77 N.C. 270

S. D. WAIT v. JOSEPH WILLIAMS.

Aetion for Money Paid to Another’s Use.

The defendant being indebted to an Insurance Company of which plaintiff" was agent, drew an order on A for the amount due, and went with-plaintiff to A, who paid a part of the order ; at defendant’s request, the-plaintiff thereupon advanced to the Company the balance due, and the-defendant left the order with him to collect the - balance due thereon and pay himself. The plaintiff used due diligence and failed to collect-it; Held, that the plaintiff is entitled to recover.

Civil Action tried at January Special Term, 1877, of Wake Superior Court, before Schenck, J.

This was an appeal from a judgment rendered by a J ustice-of the Peace in favor of the plaintiff. The facts appear in the opinion. His Honor upon the trial in the Court below gave judgment for the plaintiff, and the defendant appealed..

Messrs. Busbee Susbee, for plaintiff.

Messrs. Merrimon, Fuller £ Ashe, for defendant.

Reads, J.

The defendant was indebted to an Insurance: Company of which the plaintiff- was agent. The defendant drew an order on Jones & Co. for the amount, and the defendant and the plaintiff both together' went to Jones & Co. with the order, and Jones & Co. paid a part, and could not pay the whole. The plaintiff then, at the request of the defendant, advanced to the Insurance Company the balance which the defendant owed, and the defendant became indebted to the plaintiff individually, and not as agent, for the amount so advanced. And the defendant left the said order upon Jones & Co. with the plaintiff, with instructions to hold it and try to collect it out of Jones & Co., and with the proceeds pay himself. The plaintiff used due diligence to collect it, and failed, because Jones & Co. could not pay it.

Upon this state of facts there is not even a plausible reason why the plaintiff should not recover.

There is no error.

Per Curiam. Judgment affirmed.