John Turpin v. . E. B. and A. L. Herren

66 N.C. 519

• Court: Supreme Court of North Carolina
• Decided: January 5, 1872
• Status: Published

Opinion

Pearson, C. J.

We are satisfied from the bill, answer and *<process,’that the defendants cannot rightfully refuse to account for the two notes, one for $300 and the other for $200, and the :-$1050 Confederate notes received of the wife of plaintiff.

The supposed calculation and settlement in 1864, between ■•■the defendant and the wife of plaintiff, clearly do not conclude ¿"him, and he has a right to insist, that the defendants should tin good conscience come to a full and fair settlement, and allow i-him to sur-charge and falsify, the account stated with his wife, ■••who, although proved to be a lady of much business capacity, is not an aceountantant and was not authorized by her husband to close up business transactions; so as when he got back from the war, to prevent him from insisting upon having all the dealings and settlements with his wife, (so far as she was assuming to act as his agent, under an authority of which there is no evidence, except the fact that she is a wife, who may be well trusted by her husband,) looked into and gone over or as the books say, “surcharged and falsified.”

His Honor struck the merits of the case but- he failed to have his attention called to the fact that a Court of equity will never order a re-execution of a note which is past due. The course of the Court is to direct an account and payment of the balance found — so as to put an end to the whole controversy, and not “breed another law suit.”

There will be a reference to state the account, putting the two notes and the Confederate money and payments all into the account, at the scaled value, and striking a balance for which the plaintiff will have judgment and execution. Defendant to pay costs.

Per Curiam:.