Opinion
(Filed 9 November, 1938.)
Mortgages § 27 —
Conflicting evidence on plaintiff's contention that the mortgage note in question was paid by defendant's retention of sums due plaintiff for services rendered and application of such sums to the note by agreement, held properly submitted to the jury and sufficient to sustain a verdict in plaintiff's favor.
DEFENDANTS appealed from Cowper, Special Judge, at February Civil Term, 1938, of WAKE. No error.
J. G. Mills and John G. Mills, Jr., for plaintiffs, appellees.
A. J. Templeton and O. M. Marshburn for defendants, appellants.
This is an action to remove a cloud from the title to land, supported in brief by the following evidence:
On 29 October, 1931, the plaintiffs executed and delivered to B. C. Scarboro a note in the sum of $350.00, due and payable 1 December, 1932, and executed and delivered a deed of trust on their interest in certain lands situate in Wake County, in which deed the defendant J. M. Templeton was trustee. The plaintiff O. H. Duke was, prior to the execution of the note and for a time thereafter, employed by the defendant Scarboro in hauling tobacco to the warehouse at Oxford, North Carolina. He testifies, in substance, that the defendant Scarboro agreed to credit the amounts due the plaintiff for such hauling upon the note, and promised five or six times to cancel the note on account of such payments, which were sufficient, as plaintiff testifies, to pay off the note in full.
The plaintiff testified that after various attempts to get the note and mortgage canceled, he was forced to bring this suit for the purpose of having the note and mortgage canceled and removing a cloud from the title to his property.
The defendant Scarboro denied that the plaintiff had made him any payment on the paper. He contended that the plaintiff had been paid for the hauling by the customers whose tobacco was hauled.
There was other evidence in support of plaintiff's contention and evidence supporting that of the defendants.
The following issue was submitted to the jury:
"Had the note secured by the deed of trust been paid, as alleged in the complaint?"
The jury answered the issue in the affirmative, and from the judgment in favor of the plaintiffs the defendants appealed.
Since there was evidence tending to show that the defendant Scarboro had accepted the service of the plaintiff and had retained the amounts due for such service as payments upon the note, and evidence from which the jury might infer that the note was paid thereby, the issue submitted to the jury was proper, its answer conclusive against the defendants, and the judgment rendered thereupon correct. In this case we find
No error.