{
  "id": 8683064,
  "name": "J. C. CODNER, Adm'r, v. C. W. BIZZELL",
  "name_abbreviation": "Codner v. Bizzell",
  "decision_date": "1880-01",
  "docket_number": "",
  "first_page": "390",
  "last_page": "394",
  "citations": [
    {
      "type": "official",
      "cite": "82 N.C. 390"
    }
  ],
  "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": "63 N. C., 7",
      "category": "reporters:state",
      "reporter": "N.C.",
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        11276106
      ],
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      "case_paths": [
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    {
      "cite": "78 N. C., 470",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8696511
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/78/0470-01"
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  "last_updated": "2023-07-14T15:32:09.383104+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "J. C. CODNER, Adm'r, v. C. W. BIZZELL."
    ],
    "opinions": [
      {
        "text": "Dillard, J.\nThe defendant executed the note in suit on the 17th of January, 1861, payable at twelve months, to Carraway guardian of intestate of the plaintiff for the rent of land, and after the death of Carraway, his administrator, Everitt, finding the note among his papers, assigned over the same to the plaintiff who had qualified as administrator on the estate of the deceased ward.\nThe action on said note was begun in a justice\u2019s court^ and by appeal came to the superior court, and on the issue joined between the parties on the defence of payment and s\u00e9t-off, it was submitted to the jury to find whether the note declared on had been paid. The defendant, in support of the issue on his part, introduced in evidence an instrument executed to him by Carraway in the following words and figures, to-wit:\n\u201c Borrowed and received of C. W. Bizzell, one hundred and fifty dollars, which I promise to pay when called for, with interest. February 19, 1861.\n\u201c (Signed) Wm. Carraway. [Seal.] \u201d\nAnd defendant, by the, oath and examination of himself and one Grant, showed that Carraway applied to him to loan him the sum of one hundred and fifty dollars, and that he refused to do so, but told him he would let him have the money in payment of his note to him as guardian, if he would discount the interest until it was due. They botli testified that Carraway agreed to this, but said that he did not have defendant\u2019s note with him, and that he would give his note for the money and bring over defendant\u2019s note and surrender it to him, and accordingly the money was handed to Carraway, and the instrument, introduced in evidence by defendant, was executed with the declaration that the note now sued on was paid, and that he, Carraway, would bring it to defendant.\nThe jury upon the issue submitted to them found that the note declared on was paid, and thereupon plaintiff moved for a new trial, on the ground that there was no evidence of payment, and also for that the evidence at most disclosed that the payment claimed was a fraud on the ward\u2019s rights to which defendant was privy. His Honor overuled the motion for a new trial and in that refusal plaintiff claims there was error.\nThe evidence admitted was received without objection by the plaintiff, and thereby he was concluded as to its competency, and its admission cannot be urged as in anywise to constitute error in the refusal of a new trial. But it is said that although admitted, it was not such evidence as t'o warrant the finding by the jury of the payment alleged, and that the court should have so told the jury.\nThe rule in such case is, if there be no evidence of a fact in issue, not to allow the jury to find as to it, but if there be any evidence tending to establish the fact and reasonably sufficient to authorize it to be found, its sufficiency is a question for the jury, and the court will leave it to them to consider and to find according to such weight as they may think the evidence entitled to. State v. Patterson, 78 N. C., 470; State v. Storkey, 63 N. C., 7.\nHere, there was evidence tending to prove the controverted fact. The peculiar wording of the instrument, coupled with evidence of the refusal of defendant to lend the money, and the execution of the instrument, accompanied with a declaration that the note was thereby paid and was to be brought and delivered by Carraway to defendant, was certainly some evidence, the sufficiency of which to establish the payment was properly left to the jury.\nIt is insisted, however, that-admitting the facts relied on by defendant, they do not amount to a payment of the sealed obligation in suit, on the authority of Rhodes v. Chesson, Busb., 336. The position in a court of law is undeniable. The facts claimed by defendant would not, at common law, be admissible on the maxim of eo legamine quo legatur, nor after the statute of ANN allowing a plea of payment supported by parol evidence, on the ground that the proof here established not a payment made, but a payment to be made. But in equity the act done of furnishing one hundred and fifty dollars by defendant, in part, a payment of the note to Carraway, and a loan for the excess, and the taking of the instrument shown forth in evidence by the defendant, was in substance a discharge of the bond, and effect would be given to it as such, although ineffectual at law. Adams Eq., 106. And just so in our superior courts which administer equitable rights in every action.\nAgain, it is urged by plaintiff that the transaction by defendant with Carraway, the guardian, was with the knowledge of a diversion of a trust fund to Oarraway\u2019s private uses, and therefore not to be availed of as a payment against \u25a0the ward or his personal representative.\nThe defendant certainly had the right to pay his debt even before due, and the evidence is that he would not lend the one hundred and fifty dollars, except on the agreement that thereby he was paying his note to the guardian, and that the same was to be taken as extinguished and to be delivered up to him. There would be no color for the argument, that the money paid was vitiated as a payment without proof of a purpose on the part of Carraway to misapply the funds of his ward to his individual purpose, and a concurrence therein by defendant, and here the circumstances do not show the existence of any intent to misapply, and are quite consistent with a wish to borrow the money for the use of the ward or his estate.\nIn every view of the case, to say nothing of the failure of plaintiff to except to evidence and to have the matter of law relied on put on the record through requests for \u25a0 instructions from the court, there was no error in the refusal of the new trial, and the judgment of the court below must be affirmed.\nNo error. Affirmed.",
        "type": "majority",
        "author": "Dillard, J."
      }
    ],
    "attorneys": [
      "Messrs. G. V Strong and G. M. Smedes, for plaintiff.",
      "Messrs. Grainger & Bryan, for defendant."
    ],
    "corrections": "",
    "head_matter": "J. C. CODNER, Adm'r, v. C. W. BIZZELL.\nEvidence \u2014 Payment of guardian note.\nThe defendant, B, executed his note to 0, guardian, in January, 1861, for rent of ward\u2019s land^ the evidence of B and another was that in February, 1861, C applied to B for the loan of money, which he refused, but agreed to let C have the? money in payment of the guardian note. C consented, but not having the note with him, gave B an acknowledgment for money borrowed, and promised to deliver up the guardian note for cancellation but did not do so. After the death of C, and of the ward, the note was transferred to the ward\u2019s administrator, and'upon suit brought defendant pleaded payment; Held,\n(1) That as B\u2019s evidence was admitted without objection, plaintiff was concluded as to its competency.\n(2) That while there was no evidence of payment as a strictly legal plea, there was evidence tending to show an equitable discharge of the bond.\n(3) The defendant had a right to pajr his debt to the guardian even before it was due, and the evidence shows no intent by guardian to misapply the ward\u2019s funds or any concurrence therein by defendant.\n(State v. Patterson, 78 ST. C., 470 ; State v. Storhey, 63 \u00cdT. C., 7 ; Rhodes v. Chesson, Busb., 336, cited and approved.)\nCivil Action commenced before a justice of the peace to recover the amount of a note and tried on appeal at Fall Term, 1879, of Wayne Superior Court, before Eure, J.\nThe note sued on was in the following words: \u201c On demand, first day of January, 1862, I promise to pay William Carraway, guardian to W. B. Best, or order, one hundred' and\u2019forty dollars, for rent of \u2018 home place\u2019 and creek field, value received. January 17, 1861. (Signed) C. W. Biz-zell. (Seal).\u201d Its payment was resisted by defendant upon the facts set out in the opinion. The jury found the issues in favor of defendant, judgment, appeal by plaintiff.\nMessrs. G. V Strong and G. M. Smedes, for plaintiff.\nMessrs. Grainger & Bryan, for defendant."
  },
  "file_name": "0390-01",
  "first_page_order": 414,
  "last_page_order": 418
}