Hamilton v. . Eller

33 N.C. 276

• Court: Supreme Court of North Carolina
• Decided: August 5, 1850
• Status: Published

Opinion

Ruffin, C. J.

The motion to dismiss was not made by the plaintiff or his attorney, but by the defendant, and, as must be understood, against the will of the plaintiff at that time. The alleged letter, under which the defendant assumed the authority, is not set forth, and, hence#. it cannot be seen here, that it conferred it, and that his Honor erred, supposing that the motion could be entertained under any circumstances. We do not, therefore,consider that point; which, moreover the defendant abandons, as he states, that both he and the plaintiff have been-enjoined, at the suit of Deaver, from dismissing this suit.

The instructions to the jury were very indulgent to the defence, in leaving it to the jury to draw inferences to-an extent not warranted by the defendant’s own evidence.For he gave no evidence, that he had paid the judgments against the plaintiff; and, moreover, if he ever paid them, he failed to show that he did so before his piea in this suit. For this latter reason, if no other, the verdict should have been against the defendant on that issue.

The instrument is an obligation for $150, and is necessarily payable in money, unless it was discharged in specific article or the due tender of them at the day and place specified, of which there was no plea.

Per Curiam. Judgment affirmed.