Andrews-Cooper Lumber Co. v. Hayworth

CoNNOR, J. Tbe answer to tbe 4th issue submitted to tbe jury at the trial of this action in tbe municipal court of High Point is determinative of tbe right of tbe plaintiff to recover of tbe defendants, B. M. Hay-wortb and bis wife, Delpbia Haywortb, on tbe cause of action alleged in tbe complaint. These defendants admit in tbeir answer tbat tbey were indebted to tbeir codefendants, Gurney Loflin and J. R. Hawkins, on 5 January, 1932, in tbe sum of $1,000. Tbey allege tbat tbey paid said sum on said day. Tbe burden was on the Said defendants to sus *588 tain this defense. In apt time, tbe plaintiff requested the trial court to instruct the jury that if they believed the evidence pertinent to the 4th issue, they would answer the said issue, “No,” and excepted to the refusal of the court to so instruct the jury. On its appeal to the Superior Court, the plaintiff assigned as error the refusal of the trial court to instruct the jury as requested by it. This assignment of error was overruled by the Superior Court, and on its appeal to this Court, the plaintiff assigns same as error. The plaintiffs by this assignment of error presents to this Court its contention that there was no evidence at the trial in the municipal court of High Point, which tended to show that the defendants, B. M. Hayworth and his wife, Delphia Hayworth, paid the amount due by them to their codefendants, Gurney Loñin and J. R. Hawkins, on 5 January, 1932, as the said defendants alleged. This contention is sustained. There was no evidence at the trial in the municipal court of High Point which tends to show that at the time the defendants, B. M. Hayworth and his wife, Delphia Hayworth, delivered the cashier’s check to their codefendants, Gurney Loflin and J. R. Hawkins, it was agreed by and between said defendants that the said cashier’s check was delivered and accepted in full payment and discharge of the amount then due by said defendants to their codefendants. It is well settled that in the absence of such agreement, the delivery and acceptance of the cashier’s check was only a conditional payment of the debt. South v. Sisk, post, 655; Dewey v. Margolis, 195 N. C., 307, 142 S. E., 22; Hayworth v. Ins. Co., 190 N. C., 757, 130 S. E., 612; Graham v. Warehouse, 189 N. C., 533, 127 S. E., 540; Bank v. Barrow, 189 N. C., 303, 127 S. E., 3; 48 C. J., 617; 21 R. C. L., 60. All the evidence showed that the defendants, Gurney Loflin and J. R. Hawkins, received the cashier’s cheek at about 8:30 p.m., on 5 January, 1932, and caused the same to be presented to the drawee bank for payment on the morning of 6 January, 1932. Payment was then refused by said bank, and thereafter the check was tendered to the defendants, B. M. Hayworth and his wife, Delphia Hayworth, who declined to accept the same. There was no evidence tending to show that upon a further presentment of the check to the bank it would have been paid. . All the evidence was to the contrary. There was error in the refusal of the Superior Court to sustain plaintiff’s assignment of error based on its exception to the refusal of the trial court to instruct the jury as requested by the plaintiff with respect to the 4th issue submitted to the jury. For this error the judgment of the Superior Court must be and is Reversed.