Growers Exchange, Inc. v. . Hartman

DeviN, J. The defendant complains of the judgment below on the ground that the court failed to give a peremptory instruction for the defendant on the determinative issue, and also that the court failed to charge the jury, as requested, that if plaintiff and defendant entered into a new agreement by which certain credits were allowed on the indebtedness the issue of fraud should be answered in defendant’s favor. The judge’s charge was not sent úp, and hence it is presumed the court correctly instructed the jury on every principle of law applicable to the facts in evidence. Dry v. Bottling Co., 204 N. C., 222, 167 S. E., 801; Miller v. Wood, 210 N. C., 520, 187 S. E., 767. There was no evidence that the payments made or securities given were intended to satisfy the debt, or to constitute a compromise settlement of plaintiff’s claim. It was admitted that there was a balance due plaintiff in the sum of $1,678.90. Neither the mere acceptance of a part payment to be credited on the debt, nor an agreement as to the balance due, would prevent the plaintiff from alleging and proving that defendant was guilty of fraud in obtaining the property for which the obligation was incurred. Ordinarily, in order to constitute a novation the transaction must have been *32 so intended by the parties. In the absence of evidence that it was so intended, the giving of a note or additional security would not have the effect of changing the nature of the original obligation or deprive the creditor of the remedies available. Terry v. Robbins, 128 N. C., 140, 38 S. E., 470; Grace v. Strickland, 188 N. C., 369, 124 S. E., 856; Case v. Fitzsimons, 209 N. C., 783, 184 S. E., 818; 46 C. J., 589; Collier on Bankruptcy (14th Ed.), sec. 17, pg. 1607; Gregory v. Williams, 106 Kan., 819; Friend v. Talcott, 228 U. S., 27. The instructions as prayed were properly declined. IJnder the findings of the jury plaintiff’s debt was not released by the bankruptcy. 11 U. S. O. A., par. 35, pg. 150. In the trial we find No error.