Henry v. . Smith

Supreme Court of North Carolina

Henry v. . Smith

29 N.C. 348

DecidedAugust 5, 1847

StatusPublished

This text of 29 N.C. 348 (Henry v. . Smith) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Henry v. . Smith, 29 N.C. 348 (N.C. 1847).

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Opinion

We concur in the opinion delivered to the jury. There was a lapse of twenty-two years from the giving of the bond and of twenty-one from the last recognition of it as obligatory on the defendants, by the payment then made on it, before the beginning of this suit. There were, indeed, several applications to the obligors, or one of them, by the plaintiff's agent for payment, but there is no explanation of the *Page 246 delay to sue, in the insolvency of the obligors or any acknowledgment of the defendants' request for forbearance, but the defendants' on the other hand, directly refused, from the first, to pay anything more, and that distinctly on the ground that the bond was satisfied upon a new arrangement between the obligees and them. If the facts alleged by Smith were proven, they would constitute a good accord and satisfaction; for, undoubtedly, a lawyer who undertakes to appear for a client and fails to do so is answerable upon his contract to the client, and that will furnish a sufficient consideration for his agreement to cancel or deliver up a security for his fee. But the defendants are not obliged to prove that agreement in aid to the presumption of payment from the lapse of time, more than they would have been if they, when applied to by Deaver, had alleged any particular mode of payment, technically speaking. It certainly does not impair the force of the presumption that the obligors, when asked for payment, should affirm that the debt had been paid, or released, or satisfied in any other mode; but this rather strengthens the presumption, inasmuch as it plainly shows a just reason why the obligees did not sooner demand payment. Here it appears that one (351) of the obligees admitted that he had agreed, twenty years before suit, to deliver up the bond as satisfied, and the defendants uniformly insisted that the other obligee had been actually satisfied by setting off against his part of the bond his liability for not performing the engagement on his part, for which the sum mentioned in the bond was to be his remuneration. It is, therefore, a strong case of the concurrence of the legal presumption with actual justice; and the time mentioned in our statute, ten years, has more than run twice over.

PER CURIAM. No error.

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We concur in the opinion delivered to the jury. There was a lapse of twenty-two years from the giving of the bond and of twenty-one from the last recognition of it as obligatory on the defendants, by the payment then made on it, before the beginning of this suit. There were, indeed, several applications to the obligors, or one of them, by the plaintiff's agent for payment, but there is no explanation of the *Page 246 delay to sue, in the insolvency of the obligors or any acknowledgment of the defendants' request for forbearance, but the defendants' on the other hand, directly refused, from the first, to pay anything more, and that distinctly on the ground that the bond was satisfied upon a new arrangement between the obligees and them. If the facts alleged by Smith were proven, they would constitute a good accord and satisfaction; for, undoubtedly, a lawyer who undertakes to appear for a client and fails to do so is answerable upon his contract to the client, and that will furnish a sufficient consideration for his agreement to cancel or deliver up a security for his fee. But the defendants are not obliged to prove that agreement in aid to the presumption of payment from the lapse of time, more than they would have been if they, when applied to by Deaver, had alleged any particular mode of payment, technically speaking. It certainly does not impair the force of the presumption that the obligors, when asked for payment, should affirm that the debt had been paid, or released, or satisfied in any other mode; but this rather strengthens the presumption, inasmuch as it plainly shows a just reason why the obligees did not sooner demand payment. Here it appears that one (351) of the obligees admitted that he had agreed, twenty years before suit, to deliver up the bond as satisfied, and the defendants uniformly insisted that the other obligee had been actually satisfied by setting off against his part of the bond his liability for not performing the engagement on his part, for which the sum mentioned in the bond was to be his remuneration. It is, therefore, a strong case of the concurrence of the legal presumption with actual justice; and the time mentioned in our statute, ten years, has more than run twice over.

PER CURIAM. No error.

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Bluebook (online)

29 N.C. 348, Counsel Stack Legal Research, https://law.counselstack.com/opinion/henry-v-smith-nc-1847.