King v. . Phillips

94 N.C. 555

• Court: Supreme Court of North Carolina
• Decided: February 5, 1886
• Status: Published

Opinion

Smith, C. J.

(after stating the facts). It will be observed, that while the finding upon the second issue, is that the defendant, recognizing his liability, agreed to pay, and did pay, the indebtedness, except the three years interest, it is not found that the executor accepted the sum paid in satisfaction of the debt.

The verdict establishes the fact, that the defendant denied any further liability on the bond, and refused to pay more than $800, the principal, with interest since the $500 payment, yet it does not find that, the executor did more than receive and credit the sum which the debtor admitted and was willing to pay, and this he might well do, without compromising a right to the excess, and leaving unadjusted these differences, as to its existénce and amount. The testimony of the parties to the transaction, is really not in conflict, for neither says it was done under an agreement that the payment should discharge the full obligation. The executor says, “I did not agree that the payment discharged the note, and would not surrender it. I refused to surrender the note, because after allowing the indorsed payment of $500, the payment of $907 would not discharge what appeared to be due.”

The defendant testifies, “ I proposed to Davis that I would pay $800, with interest from the date of the $500 payment, and I claimed that only $800, the principal, was due at the date of that payment, and the interest on $800 from that time. Davis took the $907 and entered it as a credit on the note. * * * Davis said I cannot give you the note, because some back interest appears to be due.”

We refer to the evidence, not that it may be considered on the appeal, but to ascertain the true meaning of the verdict upon the second issue, in the light thus shed upon it, and that it was not intended to go beyond the limits of declaring that the defendant refused to pay or recognise his liability for more, and'not the assent of the executor to a settlement of the claim.

In this sense, there has been no compromise, no accord and satisfaction — for these require concurring minds. It is not “ what either thought, but what both agreed,” that forms contract relations between parties. Brunhild v. Freeman, 77 N. C., 128 ; Pendleton v. Jones, 82 N. C., 249 , Bailey v. Rutjes, 86 N. C., 517.

The defendant insists, that to permit a recovery upon the alleged promise to the plaintiff, which the jury find to have been made, is an unauthorized departure from the case made in the complaint, which avers the cause of action to be founded on the note, and its non-payment.

We think there is no departure in this, and that the evidence is to repel the allegation of full payment. The debt is not barred, and still subsists to sustain the action for the recovery of what is still due. Indeed, it cannot be manitained upon a parol promise to.pay a debt secured by bond, while the bond itself remains in force, and not being barred, can be sued on. Wilson v. Murphey, 3 Dev., 352.

The new promise is but a recognition of a continued covenant liability, and the evidence of it seems to repel the contention that a compromise was understood and intended to be brought about, under the Act of March 17th, 1875. The Code, §574.

There is no error, and the judgment rendered in the Court below is affirmed, and the plaintiff will have judgment here for her debt and interest, as well as costs, against the defendant, and the sureties to his undertaking on the appeal.

No error. Affirmed.