Farm Supply Co. v. Davis

ClabksoN, J. At the close of plaintiff’s evidence the defendants made motions for judgment as in case of nonsuit. Motion overruled as to the defendant E. D. Davis and allowed as to Maggie Davis. The plaintiff contends that the court below was in error in excluding the following: “Q. Mr. Pool, when you had this note executed and accepted it, did you mean to release Maggie Davis of any indebtedness she owed you? (If witness had been allowed to answer, he would have answered: No, sir, L didn’t.’)” We cannot so hold on this record. On the other hand, the defendant Maggie Davis contends that the entire evidence on the record discloses that plaintiff elected to sue on the note given by E. D. Davis for his wife’s (her) indebtedness to .|Dlaintiff, and relies on the following in Buggy Co. v. Dukes, 140 N. C., at p. 395-6: “It is true, as contended by defendant, that the acceptance of a negotiable security for an open account, suspends the right of action until the maturity of the note and then if the plaintiff will resort to his original cause of action, he must surrender the security. The acceptance of the promissory note, unless expressly so agreed upon, will not discharge the original cause of action. The law is well stated in Clark on Contracts, 435 (2d ed.) : ‘In such a case the position of the parties is that the payee, having certain rights against the other party, under a contract, has agreed to take the instrument from him instead of immediate payment of what is due him, or immediate enforcement of his right of action, and the other party, in giving the instrument, has thus far satisfied the payee’s claim, but, if the instrument is not paid at maturity, the consideration of the payer’s promise fails and his original rights are restored to him. The effect of receiving a negotiable instrument conditionally, is merely to suspend the right to sue on the original contract until the instrument matures, and when it matures, and is not paid, to give the right to sue either on it or on the original contract.’ Norton, Bills and Notes (3d ed.), 20; Gordon v. Price, 32 N. C., 385.” She further contends that the election made by plaintiff to sue on the note, made by her husband, E. D. Davis, indicated an express agreement and tantamount to the discharge of the original cause of action against her, and plaintiff now has a judgment against her husband for the in *58 debtedness. The plaintiff, although he brought an action against E. D. Davis and wife, Maggie Davis, having elected to sue on the note and take judgment against E. D. Davis the husband, is, on the record and under the pleadings, in no position to put the parties in statu quo. He therefore is estopped to maintain this action against the wife, Maggie Davis. No error.