Tull v. . Pope

69 N.C. 183

• Court: Supreme Court of North Carolina
• Decided: June 5, 1873
• Status: Published

Opinion

Pearson, C. J.

The newly-discovered evidence on which this proceeding is based, to-wit: the entries in the books of White amount only to this: Tull is credited with the principal of Washington’s note, $512, on what Tull owed White, and Washington is charged in account with the principal and interest of his note, $638.

This adds little if any force to the evidence which Tull offered on the trial of the issue, to-wit: Did White and Washington have a settlement in which the note of Washington was allowed as a set off in satisfaction pro tanto of White’s indebtedness to Washington ? This issue was found against Tull, and the weight of the evidence, throwing into the scale the entries alone referred to, is decidedly against Tull.' White and Washington did not have the settlement set out in the issue. So the case does not fall within the principle of Bledsoe v. Nixon, at this term, nor of James v. Saunders. 64 N. C. Rep. 367.

Had Tull been well advised he might have “ bought his peace ” at the sale of the note, probably for a trifling amount, ■but he took his own course, and must abide by it. If Pope •collects the money there may be a question of usury by White’s entries, but it is not now presented.

The point in regard to adding to- the indorsement by' proof of a verbal agreement that it was to be without recourse on Tull was properly abandoned in this Court. The action will be dismissed with cost.

Let this opinion be certified.

Per Curiam. Action dismissed.