Cobb v. Gray, 78 N.C. 94 (1878)

Jan. 1878 · Supreme Court of North Carolina

78 N.C. 94

HENRY COBB & W. G. COBB Adm’rs of John Cobb v. MARY GRAY and others.

•Legislative Seale for Confederate Money — Note in Substitution of Prior Note.

A note executed in 1863, for the balance 'doe upon a note executed in 1863,’(such iiew nothbeinggiven because of-alack of space on the old' note for the entry of a credit) is not subject to the legislative scale for Confederate monéy. ■

<Cable v. Hardin, 67 fST. 0. m ; King y. W. & W. R. R. Co. 01 U. S. Rep. 1, cit.ed and distinguished.)

Civil Action, commenced in a Justice’s Court and tried ■on appeal,at Fall Term, 1877, of Alamance Superior Court,' before Buxton, J.

A jury trial being waived, His Honor found the facts as follows:— In 1853, Mary, Margaret and Phoebe Gray gave their note to the plaintiff’s intestate and made several payments which were credited thereon, and in January, 1863, they went to him tp make another payment of $200, but there being no space on which to enter -.the credit, a new note under seal was .executed, for the balance due, less the $200 payment, and signed'by said‘Mary and- Margaret, and bhe husband of said Phoebe (who was then married) and made payable to plaintiff’s intestate, who received it in substitution of the old note which was surrendered to the makers. The new note is now in suit. In August, 1866, the defendants paid to plaintiff’s intestate more than was due •on said note-if it was subject to scale as of January, 1863. but less than was due, if it was not subject to be scaled. The-Court held that although the note .was dated in January, 1863, .and payable one day after .date, yet it was not payable in Confederate money, nor subject to the legislative scale upon the facts found, and gave judgment for the plaintiff', from which the defendants appealed.

Mr. J. A. Gilmer, for plaintiff.

Mr. J. JE. Boyd, for defendants.

Faircloth, J.

(After stating the facts as above.) We agree with His Honor in holding that said note is not liable to the scale. The case of Cable v. Hardin, 67 N. C. 472, is not in point. There, it was held from the manifest intent of the parties that the transaction was a new loan, and the scale applied. Here, the debtors did not propose or intend to pay the whole debt, but only a part of it; and the new note was not made for the benefit of the creditor, nor upon any idea of a loan of that amount of money, but because there was not room on the old note to enter the credit. No. Yation is not to be presumed, unless the intention to novate •clearly results from the act of the pai’ties. The intention to •do so does not appear in this ease, but it appears to the contrary; and the transaction in August, 1866, between the same parties shows that they did not intend or understand that the scale was applicable. The over-payment is not alleged to have been made by mistake, &c.

The case of King v. W. & W. R. R. Co. 91 U. S. Rep. 1, does not apply for the reason that the contract was that payment should be in Confederate currency.

No error.

Per Curiam. Judgment affirmed.