Bryant Lumber Co. v. Coppock-Warner Lumber Co.

Per Curiam. So far as the record discloses, the defendant does not deny that it owes the plaintiff $650.09, the amount of the judgment appealed from, but it says it cannot be compelled to pay $309.14 of this amount, made up of the items in finding of fact No. 3, because the jdaintiff accepted the check of $162.40, inclosed in the letter of 28 September, 1910.- The principle relied on, as illustrated by Petit v. Woodlief, 115 N. C., 125; Kerr v. Sanders, 126 N. C., 638, and Aydlett v. Brown, 153 N. C., 334, is well settled, but it has no application when the amount accepted does not purpprt to cover the amount in controversy, or when it is transmitted under circumstances showing that it was hot the purpose to pay an amount admitted by the party charged to be due, but to make a payment on an indebtedness which was thereafter to be adjusted, by the parties. In the record before us, as the statement referred to in the letter of 28 September, 1910, was not inclosed, and the books were not, introduced in evidence, there is nothing to show that the check of $162.40 purported to cover the items in finding of fact No. 3, nor is there anything that would justify us in denying to the plaintiff the right to. recover $309.14, which the referee finds the defendant owes the plaintiff, to which finding the defendant does not except. Again, the latter part of the letter of 28 September shows that the check was not sent in adjustment of account, or in payment of balance due, but “on account,” the amount actually" due to be thereafter adjusted by the parties. We have carefully examined the record, but it was not-necessary to do so, as the appeal might he dismissed for failure to assign errors. Affirmed.