Opinion
(December Term, 1846.)
To make specific articles payments they must be received as payments, or by subsequent agreement they must be applied as payments.
APPEAL from BLADEN Fall Term, 1846; Settle, J.
Debt upon a judgment, and the plea, payment. On the trial the defendant proved by a witness that the plaintiff had been indebted to one Alfred Andres on a note for $100, and that the plaintiff requested the witness to get Alfred Andres to take the plaintiffs' judgment against the defendant and credit his note for the amount of it, but that Alfred Andres never gave the credit on the plaintiff's note, but (160) required the plaintiff to pay the whole note in cash, and the plaintiff did so. The defendant further proved that he had at several times let Alfred Andres have small quantities of bacon. Upon that evidence the defendant moved the court to instruct the jury that they might find a payment on the plaintiff's judgment to the amount of the value of the bacon got by Alfred Andres. But the court refused to give the instruction, and, from a verdict and judgment of the whole of the plaintiff's demand, the defendant appealed.
D. Reid for plaintiff.
Strange for defendant.
The instruction was very property refused, for there was no evidence from which a payment could have been inferred. If the defendant had owed the debt to Alfred Andres, the bacon would not have been a payment, properly speaking, but only formed the subject of a mutual demand, that might have been set-off. To make specific articles payments, they must be received as payments, or by subsequent agreement they must be applied as payments. But the case could not be viewed as favorably to the defendant as to suppose even that the defendant's debt belonged to Alfred Andres. There was merely a proposal by the plaintiff, through the witness, that Alfred Andres should accept the plaintiff's judgment as a credit on the plaintiff's debt to him. It did not appear that the witness ever communicated the proposal to Alfred Andres, much less that the latter acceded to it, and still less that the defendant was a party to any arrangement made in compliance with the plaintiff's proposal. On the contrary, the plaintiff was required to pay, and did pay, the whole of his debt to Alfred Andres, as he was bound to do. There is no ground whatever on which the defendant can ask the plaintiff to answer for the bacon sold to Alfred (161) Andres, and especially to treat the value of it as a payment on this debt.
PER CURIAM. No error.
Cited: Young v. Alford, 113 N.C. 132.