Debt upon a bond given to Martha Webb for $185, dated 5 March, 1833, and endorsed after it was due to the present plaintiff. Pleas, nonest factum, payment. On the bond two credits were entered before the assignment: the one for $86.18, dated 27 August, 1834; the other (277) for $25.75, dated 14 March, 1835. On the trial it was alleged on the part of the defendant that a third payment had been made, for which a credit had also been entered by the obligee on the piece of paper on which the bond was written, but that the entry had been torn off or obliterated by one Anderson H. Walker, who had the possession of the bond as the agent of the obligee to collect the money, and that he so tore off or obliterated the entry for the purpose of destroying the proof of such payment. Upon this there was contradictory evidence.
Thereupon the counsel for the defendant prayed the court to instruct the jury that if they should believe that a payment was made and credited on the bond, and that said Walker obliterated it or tore it from the paper for the purpose of destroying the evidence of such payment, the bond itself was thereby in law canceled and destroyed, and this action could not be supported.
But the court instructed the jury that if the obligee had obliterated the credit entered on the bond, it would amount in law to proof of payment in full; but that the case was different if the act was done by an agent; and if the jury believed that Walker, the agent as aforesaid, had made such obliteration with the intention alleged, it did not amount to proof in law of full payment of the bond, but only raised a strong presumption of such full payment, which they must weigh in connection with the other evidence, and say upon the whole, whether the bond was paid or not. The jury found the two payments of $86.18 and $27.75, and no others; and from the judgment for the residue of the debt the defendant appealed. The proposition contended for by the defendant must be too broad. It amounts to this: that if any credit, for even a small and known sum, be entered on the paper on which the bond is written, and be fraudulently expunged, the debtor is not to take credit for the true sum paid, but that in law, the whole debt is deemed to have (278) been paid or the bond annulled. We are not aware of any such rule. If the bond itself be altered, it is destroyed; and the argument assumes that the entry of the credit becomes part of the bond, so that its obliteration is a destruction of the whole instrument. But the credit is not part of the deed. It is only written evidence of a payment on it, like a receipt. If expunged, the debtor would still have the benefit of it, if he could establish its contents. And if he could not positively show the precise contents, but there should be a doubt as to the amount or period of payment, there is a natural presumption arising from such conduct, of which the jury will always feel the just influence in making up the verdict upon the question of payment. But we do not know of any legal or technical presumption of the payment, in such case, of more than appears to have been in fact paid. If there be an error in the instructions to the jury, it is not one of which the defendant can complain. Indeed, the verdict puts the whole instruction out of the case, for it is not only that he whole debt was not paid, but that there was no third payment whatever. If there had been such third payment, the jury would have found that, although they might not have found full payment. Therefore, by finding only two payments, as entered on the bond, and still appearing there, the jury must have believed that no other payment was either entered or made.
PER CURIAM. Affirmed.
Cited: Wicker v. Jones, 159 N.C. 110.
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