Buggy Co. v. Dukes.

Connor, J., after stating the facts: Two exceptions to His Honor’s ruling were argued in this court. Defendant contends that conceding the fact to be as found by the jury, the acceptance by plaintiff, of the promissory notes for the price of the buggies, merged the original cause of action or, at least, suspended it until the notes are returned or tendered at the trial; that plaintiff cannot retain bis promissory, negotiable notes and, at the same time, prosecute an action against him for the recovery of the amount received by him as bis agent. This exception was raised by a request to charge the jury. The issue did not involve the controverted proposition ; it was directed simply to the question of fact respecting the capacity in which, or the contract under which, the buggies were delivered and received. The question is, however, presented upon the admitted facts considered in connection with the verdict. 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 bis original cause of action, be 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, (2nd 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 *396 bis 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 4 matures, and is not paid, to give the right to sue either on it or on the original contract.” Norton, Bills and Notes (3rd Ed.), 20; Gordon v. Price, 32 N. C., 385. The complaint sets out the entire transaction and defendant makes no point of the fact that his promissory notes are not tendered. He simply denies that he received the buggies upon the contract — the jury have found the issue against him. In summing up the arguments of counsel for plaintiff, the court told the jury that plaintiff insisted that defendant’s statement — that he had another and different contract from the one introduced by plaintiff — was unreasonable, for the reason that he had come to trial without such contract, and without serving notice on plaintiff to pro--duce it, etc. After the jury retired, plaintiff’s counsel called the attention of the court to the fact that in his answer defendant had said that the new contract was in parol. The court caused the jury to be brought back and told them that he withdrew so much of the charge as related to the failure of defendant to produce the written contract or to serve notice on plaintiff to produce it, and that the same should have no influence whatever on their verdict. No exception was taken to this at the time, or until the case on appeal was made out. Waiving the objection that no exception was made at the time, we are unable to perceive how the defendant could have been prejudiced by His Honor’s action. He had been misled as to the form of defendant’s alleged contract and simply removed an impression made on the mind of the jury by reason of such misapprehension. There is no merit in the exception. The judgment must be Affirmed.