Cline v. . Rudisill

36 S.E. 36, 126 N.C. 523, 1900 N.C. LEXIS 275

Opinion

Faircloth, C. J.

This action commenced before a Justice of the Peace on March 4, 1899, for work and labor and materials for building a dwelling-house. On March 13, 1899, the defendant tendered and deposited with the Justice of the Peace $18.93, and accrued costs, for the use of the plaintiffs “ini full tender qf all indebtedness of defendant to plaintiffs.” On March 14, the Justice rendered judgment in favor of the plaintiffs for $32.95 ($18.93 of which has been paid into court as above stated), against the defendant, who then and there appealed to the Superior Court.

On April 15 following, the plaintiff’s attorney filed this receipt (the appeal then pending in the Superior Court) : “Received of S. P. Sherrill, J. P., the $18.93 paid into court, and the fees, to use of plaintiffs. This money is taken out and receipt given after judgment, the plaintiffs claiming still the balance due.”

At the trial his Honor adjudged that the defendant go without day, and recover costs accruing since the appeal.

. The facts were agreed to by counsel. When the plaintiffs accepted and received the amount of the tender and deposit, they did so with the condition and terms annexed, to-wit: “In full tender of all indebtedness of defendant to plaintiffs.” They could not inject other terms into' the contract without the defendant’s consent.

The question presented is sufficiently discussed in Kerr v. Sanders, 122 N. C., 635. Code, sec. 514.

Affirmed.