Southern Engineering Co. v. Boyd

Stacy, C. J., after stating the case: The appeal presents but a single question, and it is this: What amount is the defendant, T. F. Boyd, en-' titled to credit as against the plaintiff on account of the note executed by the school board of the town of Maysville and turned over to the plaintiff as partial security for its debt on 25 October, 1920 ? The defendant contends that by reason of the receipt given at the time, he is entitled to a credit of $4,875 for said note. For this position, he relies upon the following authorities: Grubb v. Lohay, 145 N. W. (Wis.), 207; Symington v. McLin, 18 N. C., 298; Gordon v. Price, 32 N. C., 385; Terry v. Robbins, 128 N. C., 140; Ralston v. Aultman Miller & Co., 66 S. W. (Tex.), 746. The plaintiff unquestionably had the right to take this note and discharge the defendant from any or all liability as bondsman, but we do not think the receipt, above set out, should be so construed, or that such interpretation would be in keeping with the intention of the parties. It is conceded that under the consent judgment, entered in the suit pending in the Superior Court of Jones County, and to which T. F. Boyd was a party, the plaintiff received only $3,250 on said note. The defendant Boyd having been a party to the suit instituted in Jones County after the execution of the above receipt and in which the validity of this very note was at issue, and having procured and consented to a judgment decreeing that the sum of $3,250 paid thereon should inure to his benefit as bondsman or surety for the Liberty Engineering and Construction Company, we think it is but proper to hold that he is bound by the terms of said consent judgment, and that he may *146 not again -litigate tbe same matter in tbe present suit. A consent judgment is in truth a decree of tbe parties, entered of record witb tbe sanction of tbe court. It is tbeir act, tbeir contract, tbeir decree, and binding upon tbem as sucb. Distributing Co. v. Carraway, 189 N. C., p. 423, and cases there cited. On tbe instant record, therefore, tbe plaintiff is entitled to recover witb interest tbe difference between $8,250, tbe amount received on said note, and $5,594.75, tbe amount admittedly due tbe plaintiff by tbe Liberty Engineering and Construction Company on 25 October, 1920, and for which tbe defendant Boyd is liable by reason of bis suretyship. Tbe cause will be remanded, to tbe end that judgment may be entered in conformity witb this opinion. Error and remanded.