Brem v. . Covington

*593 Merrimon, C. J. — after stating the case: The evidence objected to and embraced by the first exception was scarcely material or important, but if it could have become so, it was harmless, because the witness said no more than he had already said in substance — that he did not tell the defendant in what capacity he presented the order, although, in fact, he presented it as trustee. The second exception to evidence is groundless, and for the reason stated by the Court below. There was no evidence to show that, the plaintiff was agent of the makers of the order, or that they had power or authority arising in any way to revoke the same. The Court properly declined to give the jury the special instruction asked for by the defendant. If that had been material, there was a consideration -to support the promise of the defendant to act upon the order, and pay the balance referred to in it to the plaintiff, in that the order, in effecting the assignment of the balance, relieved him from further liability to the makers of the order, whose agent he was, as to any balance due from him to them. Nor was it necessary that the defendant should accept the order. It was an informal instrument, and was some evidence of an assignment of the balance mentioned therein in the hands of the defendant to the plaintiff. The order does not purport on its face to embrace, or embody, the-whole contract of assignment of the balance of the money referred to in it to the plaintiff (it only embraces so mucb as affected the defendant), and it was competent to give oral, evidence as to the assignment, in the absence of written evidence. On looking to the complaint, we find that the allegations-of the cause of action are comprehensive, and they do not. confine the plaintiff to a recovery upon the order merely;. *594 he sues to recover the balance mentioned by virtue of an assignment thereof. That he may maintain such an action, under the present method of civil procedure, is well settled. Ponton v. Griffin, 72 N. C., 362; Willis v. White, 73 N. C., 484; Moore v. Nowell, 94 N. C., 265. And, for the reason just stated, the plaintiff might show that the assignment was made to him as trustee, and the purpose of the trust, if need be. Obviously, if the balance mentioned in the order was assigned to the plaintiff, and the defendant had notice of such assignment, he could not pay it, or anj^ part of it, to the makers of the order, because the indebtedness belonged to the plaintiff, and he alone had the right to accept money, or aught else, in discharge of it. The instruction of the Court to the jury in respect to interest was substantially correct. The debt was due when •the plaintiff presented the order to the defendant. It directed that payment be then made. As this was not then done, the defendant was at once chargeable with interest. The Code, § 530; Devereux v. Burgwin, 11 Ired., 490; Farmer v. Willard, 75 N. C., 401; Patapsco v. Magee, 86 N. C., 350; Jolly v. Bryan, id., 457, and McRae v. Malloy, 87 N. C., 196. Affirmed.