{ "id": 8651211, "name": "R. W. TIDDY and WM. TIDDY v. H. W. HARRIS and R. H. HARRIS", "name_abbreviation": "Tiddy v. Harris", "decision_date": "1888-09", "docket_number": "", "first_page": "589", "last_page": "593", "citations": [ { "type": "official", "cite": "101 N.C. 589" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "3 Dev., 253", "category": "reporters:state", "reporter": "Dev.", "case_ids": [ 8690649 ], "opinion_index": 0, "case_paths": [ "/nc/14/0253-01" ] }, { "cite": "7 Ired., 353", "category": "reporters:state", "reporter": "Ired.", "case_ids": [ 8694136 ], "opinion_index": 0, "case_paths": [ "/nc/29/0353-01" ] }, { "cite": "1 Ired., 286", "category": "reporters:state", "reporter": "Ired.", "case_ids": [ 2104313 ], "opinion_index": 0, "case_paths": [ "/nc/23/0286-01" ] }, { "cite": "78 N. C., 124", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8687480 ], "opinion_index": 0, "case_paths": [ "/nc/78/0124-01" ] }, { "cite": "100 N. C., 283", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8650577 ], "opinion_index": 0, "case_paths": [ "/nc/100/0283-01" ] } ], "analysis": { "cardinality": 525, "char_count": 8994, "ocr_confidence": 0.531, "pagerank": { "raw": 1.4974076530375106e-07, "percentile": 0.6641226959564052 }, "sha256": "d994666495cdca28719981f9e88f9df2e7067c85303a77fbb2d39fda58da3218", "simhash": "1:bf001c2021ba8f05", "word_count": 1619 }, "last_updated": "2023-07-14T16:51:11.114152+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "R. W. TIDDY and WM. TIDDY v. H. W. HARRIS and R. H. HARRIS." ], "opinions": [ { "text": "Smith, C. J.\n(after stating the case.) There are no issues shown in the record to have been submitted to the jury as required by The Code, the neglect to draw up which, so as to give meaning to the verdict, would induce us, after such repeated warning given and disregarded, to refuse to entertain the appeal and remand the case, but that the verdict was dispensed with and the case never reached the jury.\nThe defendants\u2019 counsel insists that the appeal should be dismissed, because the nonsuit was needlessly suffered when the cause ought to have proceeded to its termination. But the practice has long prevailed, that when the proofs are all in and the Judge intimates an opinion that, under the old practice the plaintiff cannot recover, or under the new fails to establish the issues necessary to his having judgment, he may suffer a nonsuit, and, by appeal, have the correctness of the ruling reviewed. We see no reason why this course may not be taken when the Judge announces, as in this case he substantially does, that if the jury believe the facts to be as deposed to by the witnesses, he will instruct them to find the issue as to the payment in favor of the defendant.\nIn a late case\u2014Davis v. Ely, 100 N. C., 283\u2014the Court did not wait until the evidence was concluded, but in denying the motion to dismiss the action, added, that the plaintiff, if he proved his averments, could not have the specific relief asked \u2014 the contract reformed, and, as reformed, specifically enforced \u2014 but he would be entitled, upon the facts set out in the complaint, if proved, to a judgment rescinding the contract. Thereupon, the nonsuit was suffered.\nThis course of procedure did not meet our approval, for the reason that the opinion was purely hypothetical and contingent, open to a retraction when the opportune time arrived for an authoritative ruling; and, moreover, the verdict might dispose of the case if rendered against the plaintiff upon the evidence. We took occasion then to say what we now repeat, that a convenient practice is, to reserve a ruling upon the motion to nonsuit, with consent of parties, \u201c and let the case proceed to verdict, so that if it was against the plaintiff, the reserved point would be put out of the way, and if for him, the ruling upon it adverse to the defendant, when erroneous, could be corrected, and, in either case, the cause terminated.\u201d Kirby v. Mills, 78 N. C., 124.\nThe rule will operate quite as favorably in cases like the present.\nUpon the point, however, brought up by the plaintiff\u2019s appeal, we concur in the ruling indicated by the Judge. He does not say that admissions of payment are not open to disproof as when merely such they are, but evidence of payment to be considered and passed on by the jury, but he means to say that when Waddell, the debtor, gave the check, drawn in his favor by Morgan to the plaintiff R. N Tiddy, who deposited it to his credit as stated, the transaction, nothing to the contrary appearing, must be understood to have been intended to he, and to be, a payment. The fact that Morgan gave the check under Tiddy\u2019s promise to cover does not change the nature and effect of the act as between him and Waddell, whose interest was thereby acquired by the former. That the act of delivering the check and its conversion into a money credit by the deposit are in legal effect a payment, is sustained in principle by Brisendine v. Martin, 1 Ired., 286, and Hall v. Whitaker, 7 Ired., 353, and other cases. The appellees\u2019 contention, which aims to give to the transaction the effect of an assignment instead of payment, so as to preserve the remedy against the other debtor, finds no-support in the facts.\nTo prevent a satisfaction when a surety pays the money to the creditor to preserve the security for the benefit of the surety so paying, it must be assigned to a trustee, and in no other way can it be kept alive. Hodges v. Armstrong, 3 Dev., 253; Briley v. Sugg, 1 D. &. B. Eq., 366. Nor when intended as a payment can it fail to have such effect because less than the sum demanded, when accepted as such, under the act of 1874 and 1875. The Code, \u00a7 574.\nThere is no error, and the judgment is affirmed.\nAffirmed.", "type": "majority", "author": "Smith, C. J." } ], "attorneys": [ "Mr. C. W. Tillett, for the plaintiffs.", "Messrs. Burwell & Walker (filed a brief), for the defendants." ], "corrections": "", "head_matter": "R. W. TIDDY and WM. TIDDY v. H. W. HARRIS and R. H. HARRIS.\nNonsuit \u2014 Issues\u2014Appeal\u2014Principal and Surety \u2014 Payment.\n1. Where, at the close of the testimony, the Judge stated that he should charge the jury that, if they believed the evidence, the defendant had established his defence: Held, that the plaintiff might submit to a nonsuit and have the questions of law raised by the testimony reviewed on appeal.\n2. It is again intimated that this Court will not entertain an appeal where the transcript of the record fails to show that issues were proposed and submitted as required by The Code.\n3. When a debtor pays money to his creditor, in the absence of anything to the contrary appearing, the presumption is that it was a. \u25a0 payment on the existing debt; and so if the payment is made by the delivery of a check, which is afterwards converted into cash..\n4. If a surety desires to preserve for his benefit an existing security for the debt which he is called upon to discharge, the debt and security must be assigned to a trustee, otherwise the payment will be in satisfaction.\nCivil action, tried before Boykin, J, at Spring Term, 1888, of Mecklenbueu Superior Court.\nThis action, commenced on July 10th, 1885, by the service of a summons on H. W. Harris and R. H. Harris \u2014 as to the last named of whom a nolle prosequi, was entered before the trial \u2014 is prosecuted to recover a balance alleged to be due for goods, wares and merchandise sold and delivered, the items whereof are set out in an exhibit annexed to the complaint. The complaint was met by a demurrer, and this being overruled, the defendants put in separate answers-in each of which respondents deny their liability to the-plaintiffs, and aver that the debt demanded has been paid.\nThe only witness who testified in behalf of the plaintiffs-was R. N. Tiddy, one of the plaintiffs, whose testimony tended to show that the plaintiffs, Tiddy & Bro., had sold merchandise to A. M. Waddell and the defendant H. W. Harris, as set out in the complaint, and the defendant and A. M. Waddell were indebted to plaintiffs, as set forth therein.\nThe defendant, seeking to establish his plea of payment, introduced as a witness one H. A. Deal, who testified, on his direct examination, that he asked R. N. Tiddy, in the fall of 1883, if the debt sued on had been paid, and he said it had; he didn\u2019t say how it was paid, nor by whom. On his \u2022cross-examination, the witness said : \u201c This was in September, 1883, in Tiddy\u2019s office. H. W. Harris said he had not paid it. Waddell and I had had a conversation, and he said this debt was paid.\u201d And on his re-direct examination the witness said : \u201c I saw Col. Waddell at Warm Springs ; he said to me he had retired from the newspaper; that he was a public man and could not afford to leave an unpaid debt.\u201d ' \u2018\nThe defendant testified : \u201c I went to Mr. Tiddy\u2019s office in June, 1884, and said: \u2018I understand, Mr. Tiddy, that all that debt has been paid.\u2019 He replied: \u2018 You know how that is,\u2019 and went on to talk about his not being a free agent. I told him I didn\u2019t know; that I had been informed it had been paid. He did not deny it.\u201d And on his cross-examination this witness stated that H. A. Deal had told him that this debt was paid.\nThis was all the testimony introduced by the defendant, to establish his plea of payment.\nThe plaintiffs replied thereto by recalling R. N. Tiddy, who said : \u201c I said to Deal that the debt had been paid, because I wanted Col. Waddell\u2019s interest in the contract. I toldfone W. C. Morgan to give Waddell his check for $1,000, and\u00bfI would cover it. I gave him my check. Morgan gave Waddell his check and Waddell gave it to me and I got his interest. I have not received any money.from any party on ithis'account.\u201d And on his cross-examination, he said: \u201cI-put the Waddell check iu bank to our credit. I credited part to the book-store account and part to the paper-mill account in settlement of these claims. I will not say I did not tell Deal the debt was paid. We got credit in bank on Waddell\u2019s check. I charged the debt up again when I signed my cheek. I marked the claim satisfied in order that I might get Waddell\u2019s interest.\u201d\nThere was no other evidence relating to the payment of the debt, except what is above stated.\nAfter close of the testimony and during the argument of counsel, his Honor stated to the counsel th'at he should charge the jury that if they believed the testimony, the defendant had established his plea of payment, and the jury should find that issue in his favor, and thereupon the plaintiffs asked to be allowed to enter a nonsuit, which request was granted, and judgment of nonsuit accordingly entered, and the plaintiffs appealed.\nMr. C. W. Tillett, for the plaintiffs.\nMessrs. Burwell & Walker (filed a brief), for the defendants." }, "file_name": "0589-01", "first_page_order": 621, "last_page_order": 625 }