Hood System Industrial Bank of High Point v. Dixie Oil Co.

Adams, J. Prior to tbe introduction of evidence tbe plaintiff made a motion to quash tbe deposition of Wray Farlow on tbe ground that tbe testimony of tbe witness was incompetent in that it was not a statement of facts but an argumentative conclusion of bis own (C. S., 1819) by which, if believed, a written instrument would be released by parol. As to tbe first objection tbe court announced that tbe admissibility of tbe answer to each question would be determined when tbe deposition was offered, and in reference to tbe other, tbe defendant D. 0. Cecil, who was a surety on tbe note, testified that when tbe cashier agreed to accept tbe Marsh notes in lieu of those given by tbe defendants tbe “bank delivered to me my papers and released tbe Dixie Oil Company,” an act which was tantamount to a discharge of tbe debt or tbe intentional cancellation of tbe papers. 0. S., 3101. According to this testimony tbe notes were delivered to tbe makers; they were not retained by the holder as in Manly v. Beam, 190 N. C., 659; and Farlow’s deposition bore directly upon tbe contract which tbe defendants pleaded in bar of tbe plaintiff’s recovery. Other exceptions were taken to evidence on the theory that the contract was not in writing; but the defense was a discharge of tbe debt under C. S., 3101, not tbe renunciation of a right under section 3104, although in tbe latter no writing is necessary if “tbe instrument is delivered to tbe person primarily liable thereon.” Tbe first sixteen exceptions which are directly or indirectly addressed to tbe same subject-matter must be overruled. Tbe only others to which we need advert are those which have reference to instructions given the jury. Tbe seventeenth is directed to tbe court’s statement of a paragraph in tbe answer, -which is unobjectionable; tbe eighteenth, to tbe deposition of Farlow, which was properly admitted in evidence; tbe nineteenth, to the rule given as to the burden of proof, which was correct; and the twentieth, to an instruction correctly applying the principle that a negotiable instrument may be discharged by any act which will discharge a simple contract for the payment of money. C. S., 3101. The charge in our opinion was a sufficient compliance with the rule that the court should give the respective contentions of the parties and the law applicable thereto, as laid down in S. v. Merrick, 171 N. C., 788, and Jarrett v. Trunk Co., 144 N. C., 299. The other exceptions are formal. No error.