Armstrong v. . Lonon

63 S.E. 101, 149 N.C. 434, 1908 N.C. LEXIS 369

• Court: Supreme Court of North Carolina
• Decided: December 16, 1908
• Status: Published

Opinion

Per Curiam.

We have examined the record and exceptions and the Judge’s charge in this case, and find no reversible error. There is only one assignment of error relating to the testimony taken or rejected, and that is without merit. The other assignments of error relate to prayers for instruction and to the charge of the Court. There is evidence upon the part of plaintiff, in the deposition of Cator, as well as the evidence offered by defendant, that there was a dispute, or at least some misunderstanding in regard to one item in the account, which amounted to the sum now claimed.. The check indicated on its face that it was sent in full payment to date thereof and while this is not, under the circumstances of this case, conclusive, yet the receipt of it by the plaintiffs, their endorsement of it and retention of the money, is sufficient evidence to go to the jury that it was sent and received as a full payment and discharge of all indebtedness of defendant to plaintiffs, and so intended.

In charging the jury we think his Honor followed the principles laid down in Petit v. Woodlief, 115 N. C., 125; Boykin v. Buie, 109 N. C., 503; Koonce v. Russell, 103 N. C., 179; Pruden v. R. R., 121 N. C., p. 511, and in his instructions and those refused we find no error that necessitates another trial.

The case of Kerr v. Saunders, 122 N. C., 635, not cited in either brief, is very much in point.

No error.