Opinion
(June Term, 1831.)
1. A count for money paid to B. by A., at the request of and to the use of C., is supported by proof of the sale of a bond by A. to B., and that B. credited C. with the amount.
2. Where the plaintiff declares in two counts, and the attention of the jury is directed by the judge to one of them only, a general verdict found by them is presumed to be on that count.
ASSUMPSIT, tried before his Honor, Daniel, J., at FRANKLIN, on the last fall circuit. The plaintiff declared in two counts: (1) on a special contract, and (2) for money paid to the use of the defendant. Pleas — general issue, and the Act of 1826 (pamphlet, c. 10), requiring a special promise to answer the debt or default of another to be in writing in order to charge the defendant therewith. On the trial it appeared that in May, 1828, one James C. Jones, the father of the plaintiff, conveyed all his property, in trust, to indemnify the defendant and others, who were his sureties to a large amount; that in March, 1828, judgments were obtained against the said James C. Jones, executions upon which were levied upon the negroes conveyed in the deed of trust; that previously to the sale the defendant told the plaintiff that he was apprehensive of some loss on account of his suretyship for James C. Jones, and that to protect himself he intended to purchase the negroes levied upon, and resell them at a more favorable opportunity; and not being able to raise money enough to purchase negroes to the amount of the executions, he promised the plaintiff that if he would advance money upon the execution, he should be reimbursed out of the negroes purchased at the sheriff's sale; that the plaintiff accordingly delivered to the sheriff a bond for $525, which the latter received as cash, and credited upon one of the executions, and the balance was satisfied by a sale of a part of the negroes, which were bid off by the defendant; that the defendant afterwards refused to comply with his contract, alleging that the money paid by the plaintiff was the property of his father, James C. Jones.
Badger and W. H. Haywood for defendant.
Attorney-General and Seawell contra.
His Honor charged the jury that if the plaintiff paid the debt of James C. Jones at the request of the defendant, he was not entitled to recover, unless the request was in writing. But if he paid the money at the request and for the use of the defendant, then he was entitled to a verdict on the last count in the declaration. The jury "found all the issues in favor of the plaintiff," and a new trial being refused, the (113) defendant appealed.
Whether the sum of $525 belonged to James C. Jones or to the plaintiff was properly left to the jury. It was also submitted to them whether it was paid for the use and benefit of the defendant by the plaintiff. If it was, they were instructed that they should find a verdict for the plaintiff. They found so accordingly. Two objections are raised upon the record; the first, to the charge of the judge; the second, that the verdict is general, and it cannot be ascertained upon which of the two counts it was rendered.
As to the first, it appeared in evidence that the sheriff received from the plaintiff a bond as cash, and credited one of the executions with the amount, agreeably to the bargain and understanding the plaintiff had with the defendant. It is argued that the count for money paid to the use of the defendant is not sustained by that evidence. It appears to me otherwise. I think the transaction is susceptible of two views. The first is, that the sheriff voluntarily paid the money for the plaintiff, by crediting the executions, for which he had a claim upon the plaintiff. Or it may be taken, secondly, that he purchased the bond for cash, and having the cash in his hands, as belonging to the plaintiff, paid it over for the use of the defendant, as he was requested by the plaintiff to do, in discharge of the executions.
With respect to the second objection, nothing was said by the judge to the jury on the first count, on a breach of special contract. Their attention was called to the second count, which was for money paid to the use of the defendant. It may be fairly inferred, and ought to be so taken, that the verdict was rendered on that count. They were directed to inquire whether the money was paid for the use and (114) benefit of the defendants; if it was, they should find a verdict for the plaintiff. I think the verdict was responsive to the charge, and that the rule for a new trial should be discharged.
PER CURIAM. Judgment affirmed.
Cited: S. v. Long, 52 N.C. 26; Wilson v. Tatum, 53 N.C. 302; Jones v. Palmer, 83 N.C. 305.