#### JOHN HOKE’S EXECUTORS vs. SAMUEL FLEMING.

One of several executors may release a debt on demand due to the testator; it is not necessary that all should join.

When a witness is impeached by shewing that he has made contradictory statements, it is perfectly regular, in reply, to shew that he has made consistent statements.

A. made a contract with B. that he would place in the hands of a constable a large amount of promissory notes endorsed by A. to B , take the constable’s receipt therefor and deliver it to B., upon which B. was to deliver to A. cotton yarn to the amount of the note. A., without placing notes in the constable’s hands, fraudulently procured him to sign a receipt, as if notes had been given him for collection, and handed the receipt to B , whereupon B. delivered the cotton yarn according to the contract. Held that B. might maintain an action against A., either in case in assumpsit or in case in tort, at his election.

The cases of Johnson v. Patterson, 2 Hawks 183, State v. George, 8 Ire. 324, and Draughn v. Bunting, 9 Ire. 10, cited and approved.

Appeal from the. Superior Court of Law of McDowell County, at the Fall Term, 1848, his Honor Judge Manly presiding. -v^v-.

This was an action of assumpsit, wherein the facts were found as follows .* It was agreed between the plaintiff’s testator and the defendant, (the one residing in Lincoln County and the other in the county of Yancy,) that promissory notes for cash were to be endorsed by the defendant to the testator, and placed by the defendant in the hands of a constable in Yancy for collection; and, upon the reception of the constable’s receipts at the testator’s Cotton Factory in Lincoln, he engaged to deliver to the defendant cotton yarns and domestic cloths at cash prices. The defendant then communicated to a coustable, bjr the name of Chandler, his bargain with Hoke, and made aii *264engagement with him, by which the constable was to give his receipts to Fleming for the amount required. The receipts were accordingly given, copies of which are annexed, marked A. B. C. and the goods delivered by Hoke according to contract.

Upon the giving of the two first receipts, notes were endorsed and given to the constable, to the amount of about $700 ; the last was given without any thing passing between them, and the whole arrangement made, by a common understanding between the constable and Fleming, to enable the latter to deceive Hoke and defraud him of his goods. It appeared also that Hoke had heretofore instituted a suit upon the official bond of the constable and his sureties, and obtained judgment against the constable alone, but was unable to get satisfaction of any part thereof. In the course of the trial, the plaintiff offered the constable Chandler as a witness. He was objected to on the ground of interest, and two of the executors, plaintiffs, being present, released him ; the copy of the release (marked D) is annexed. His competency was still further resisted, on the ground that the executors (not being the whole number) could not make a release, but the objection was overruled and the witness admitted, being first examined upon his voire ¿?>e and disclaiming all interest. To impeach the credibility of Chandlei's testimony, declarations of his, inconsistent therewith, were offered, and the plaintiff, in reply, offered to prove decíarations of the same purport with his oath. This was objected to bjr the defendant, but admitted.

The defendant resisted the recovery', 1st because the facts stated would not sustain the particular form of action adopted (assumpsit.)

2nd. The release of the judgment in the action against Chandler and his sureties was a bar to the recovery in this.

The Court gave instructions to the jury adverse to these positions of the defendant, and there was a verdict for the *265plaintiff for the value due on the bills of goods delivered, after deducting the amount of endorsed notes placed in the hands of the constable according to contract.

A rule was moved on the ground of misdirection and' of the admission, of improper testimony, which was discharged. Judgment being rendered on the verdict, the’ defendant appealed. '

The following are the copies referred to in the’ease, in words and figures, to-wit:

A.

•Received of John Hoke, endorsed by Samuel Fleming, six hundred and ninety-two dollars and 17 cents, in cash notes,-which I promise to collect or return, as an officer, this the 12th of January, 1840, which I promise to collect or return, January, 16; 1840.

(Signed,)

A. E. CHANDLER, Con.

B.

Received of John Hoke, endorsed by Samuel Fleming, eight, hundred and ñinety-two dollars and thirty-seven cts. in cash notes, to collect or return according tó law, as an officer, this 12th January, 1840, which I promise to collect or return, January 16, 1840. f’892 37,

(Signed,)

A. E. CHANDLER, Con.

C.

Ree'd of Col. John Hoke, endorsed by Sam’l Fleming, five hundred and eighty dollars and fifty-six cents, in cash-notes due, and three hundred due this Fall, but all drawing interest, which I promise to collect or return, as an officer, this 18th of March-1840. $880 56,

(Signed,)

A. E. CHANDLER, Can.

*266Í).

Know all men by these presents that.we, JohnF. Hoke and Lysander F. Childs, executors of the last will and testament of John Hoke, dec’d, for and in consideration of one dollar to them paid by Alexander É. Chandler, and for divers other good causes and considerations them thereunto moving, have released, acquitted and discharged, and do hereby acquit, release and discharge the said A. E. Chandler of and from a judgment and every part thereof, recovered in Burke Superior Court of Law against the said A. E. Chandler by the said John Hoke, dec’d, in the name of the State of North Carolina to the use of the said John Hoke, at the Fall Term A. D. 1843, of the said Superior Court, and do hereby release and discharge the said Alberto of and from all farther liability on account thereof; in witness whereof; we'have hereunto set our hands and seals this the 9th day of November 1848.

(Signed,)

J. F. HOKE, [seal.]

L.D. CHILDS, [seal.]

Witness, H. W. Guión,

Guión and Edney, for the .plaintiffs.

Bynum, Avery and N. W, Wóodfm, for the defendant.

Pearson, J.

We concur with his Honor upon-all the questions raised by the exceptions of the defendant.

One executor may release: it is not necessary for all the executors to join. 1 Williams on Exts. 652. 8 E. C. L. R. 518.

When a witness is iriipeached by showing that he has ¿hade contiadictory s'tatenients. it is perfectly regalar; in reply, to show that he has made "consistent statements, Johnson v. Patterson, 2 Hawks 183, State v.George, 8 Ire. 324. The defendant agreed to indorse promissory notes *267to the testator of the plaintiff, and put them in the hands of a constable, in the county ofYancy, and upon the reception of the receipts, the testator agreed to deliver to the defendant cotton yarn at cash prices. Afterwards, the defendant handed to the testator the receipts, signed by a constable of the county of Yancy, for a large amount. Upon the reception of those receipts, the testator delivered to the defendant cotton yarn in pursuance of the agreement. The breach of this contract assigned by the plaintiff is, that the defendant did not endorse promissory notes to the testator and did not put promissory notes so endorsed in the hands of the constable in the county &c. His Honor instructed the jury, that an action on the case in assumpsit would lie for a breach of contract on the part of the defendant. This seems to be a proposition so exceedingly plain, that we should have been at a loss to discern what grounds were relied on by the defendant, but for the very ingenious arguments of his counsel. The defendant endorsed a few notes to the testator, and put them in the hands of the constable, and procured the constable to execute three receipts, as for notes so endorsed, to a very large amount, and, by handing these receipts to the testator, was enabled to deceive him and defraud him of his goods. We think it clear that case in assumpsit or case in tort for the deceit would lie, at the election of the plaintiff, for this breach of contract, and fraud practiced under cover of the contract.

Tf is unnecessary to decid", whether an ac*i"« fnr crnods " ' j . ’ !”■; . uOi AdU üild. pUl III iiJtr uuuuu v/i vuu COuSliiblfí j bCC^USB very clearly an action can be maintained for a breach of the special contract, and the declaration has several counts upon the contract, as well as the general counts. The argument, that, because the receipts were genuine, and the testator had a right of action against the consta*268ble, there was no breach of contract; is entirely fallacious. The substance of the contract was, that the defendant would endorse notes to the testator and put the notes so ■endorsed in the hands of the constable. ' The fact of taking a receipt was merely to give assurance to the testator, that the notes had been so endorsed and put into the hands of the constable for his benefit, and to be evidence against the constable, if the testator called for his notes and they were not delivered, or there was negligence in not collecting or a failure to pay over. The contract then was broken in the very substance and marrow of it, and was only complied with in its formal part of taking receipts, not for the benefit of the testator, but as the means oí cheating him — a strange way of performing a contract which was to be the consideration for the testator’s goods. The release executed to Chandler, if it had been properly pleaded, was no bar to a recovery in this action. The defendant had no cause to complain, if there was no such relation existing between him and Chandler, as to make the latter primarily liable to the plaintiff, and in fact the defendant had no cause of action for contribution, or otherwise, against Chandler, in respect of the amount of the notes purporting to have been received by him from the defendant, and which in truth never were received, and which omission formed the gravamen of this action ; and, as the defendant had no cause of action against Chandler, in respect of notes, which he never received, it is difficult to conceive, why he should object to the release or have -any-concern with if. In Draughan v. Bunting, 9 Ired. 19, the party had a right to contribution. The judgment below must be affirmed.

Pee Cuktam

Judgment affirmed.