Opinion
(December Term, 1860.)
An acknowledgment by the bargainor in a deed that he has received the consideration money is a bar in a court of law to any action for the recovery thereof.
ASSUMPSIT, tried before Shepherd, J., at January Special Term, 1860, of GUILFORD.
Morehead and McLean for plaintiffs.
Fowle and Gorrell for defendant.
The plaintiffs were the owners of a patent right for a machine called Elliott's Corn Sheller and Separator, and the defendant wrote to them from St. Louis that if they would send him a deed for the patent in question for the State of Arkansas he would give them $600 in three months, offering, in the meantime, to give them a note and security for that sum. The deed was accordingly sent and received by the defendant in due season, but the note for the money was not sent, nor was the money paid at the end of the credit stipulated for.
The deed, reciting the plaintiffs' ownership of the patent right in question, proceeds as follows: "Now, know all men by these presents, that we, the said Adams, Hiatt, and Mendenhall, for and in consideration of the sum of six hundred dollars, to us in hand paid, the receipt of which is hereby acknowledged, have transferred, sold, etc." The release here set forth was pleaded and relied on at the trial.
By consent a verdict was entered for the plaintiffs for $600 and interest, subject to the opinion of the court on the question as to the sufficiency of the release. His Honor afterwards set aside the (106) verdict and ordered a nonsuit. Plaintiffs appealed.
This is an action of assumpsit, in which the plaintiffs allege a liability of the defendant upon an undertaking that he would, in consideration of a deed for a certain patent right to be used in the State of Arkansas, pay therefor $600 at three months credit, and make a good note for it. The declaration is in two counts:
1. For not making the note.
2. For not paying the money.
The case turns upon the effect of a release, pleaded as a bar to the recovery and which is found in the deed, for the right to use the patent above referred to, and dated 12 October, 1857. We concur with his Honor that the release in the deed is a bar at law to the plaintiffs' recovery on either count. In either aspect it is an action for the consideration expressed in the deed. The consideration is there declared to be paid, and the plaintiffs, who are the grantors in the deed, are estopped to deny it in this action.
This question was brought directly into judgment in the case of Brocket v. Foscue, 8 N.C. 64, and it was there held that when a deed contains an acknowledgment by the bargainor of the receipt of the consideration money, with an exoneration therefrom, it amounts to a bar to the action for the purchase money, and that parol evidence shall not be received to contradict the averment of payment in such case.
The same principles are decided in Lowe v. Weatherley, 20 N.C. 353; and are again recognized in Crawley v. Timberlake, 36 N.C. 346, and 37 N.C. 460, where equity takes jurisdiction and relieves from the legal effect of such release upon a case made of (107) ignorance and misapprehension.
Our attention has been called to Robbins v. Love, 10 N.C. 82, and Lane v. Wingate, 25 N.C. 326. There is no conflict, as we think, between these cases and Brocket v. Foscue and Lowe v. Weatherley.
The first, Robbins v. Love, was an action of assumpsit for a balance of $1,000 due for merchandise sold. The defendant was permitted to introduce a deed for a house and lot, in which the consideration was stated to be $1,000 in hand paid, and to prove by the subscribing witness that it was paid by an agreement to consider the debt for the goods extinguished. This was held not to be a contradiction of the deed, but proof of a distinct fact only as to how the money came, of which the defendant acknowledges the receipt, in his deed to the plaintiff. Thus, without contradicting his deed, the defendant was enabled to show distinct facts, which amounted to an accord and satisfaction and which furnished, of course, a complete answer to the plaintiff's action of assumpsit.
The other case, Lane v. Wingate, was an action of assumpsit, also, upon a parol obligation, not under seal, with condition for the support of an aged woman slave. No consideration was stated in the writing, and the plaintiff resorted to evidence dehors the instrument, and showed that upon a sale of negroes by plaintiff to defendant he wished to purchase, besides those the plaintiff was willing to sell, a boy by the name of Daniel. Plaintiff's objection to the sale of Daniel was that he wanted him to wait on the old woman referred to in the condition of obligation. And thereupon the defendant agreed, if the plaintiff would sell him Daniel, he would maintain the woman for life, and accordingly entered into the obligation on which the action was brought. Defendant, in answer to the action, introduced the deed of sale of Daniel and other slaves, in which plaintiff acknowledges that he had received a sum in full for the said negroes, and contended that plaintiff was estopped by the said deed from recovering under the said agreement. But the Court held otherwise, upon the ground that the agreement was a distinct obligation, growing out of the sale of Daniel, and that it was (108) not any part of the money consideration, the receipt of which was acknowledged in the deed, and there was, therefore, no estoppel.
Both these cases were put upon peculiar grounds, and were not supposed by the learned judges who then presided in the Court to impugn at all the doctrine of estoppel by deed, and cannot, therefore, be rightfully invoked for that purpose.
In the case now before us the action is for the recovery of the consideration mentioned in the deed, the purchase-money of the patent. For we do not perceive that it varies the matter or object of the action whether the recovery be had upon the count for $600, the price of the patent, which was to be paid after three months time, or for the $600 as damages for not giving a good note, in the meantime, for the price aforesaid. It is equally an action for the recovery of the consideration money of the deed, and this the plaintiffs have acknowledged by their deed to be paid. They are concluded in a court of law by this acknowledgment under seal.
PER CURIAM. Affirmed.
Cited: Lawson v. Pringle, 98 N.C. 452; Shaw v. Williams, 100 N.C. 280; Barbee v. Barbee, 108 N.C. 584.