There was a verdict for the plaintiff, and from a judgment thereon the defendants appealed.
The facts are fully stated in the opinion of Associate Justice Furches. This is a civil action of debt, evidenced by three notes, secured by mortgage, and a foreclosure of the mortgage. The execution of the notes and mortgage and their non-payment are admitted. But defendant pleads and relies on the statute of limitations as a bar to plaintiff's action. The notes are under seal and were made in 1874, and this action was commenced in the spring of 1892. There had been several payments made and endorsed on these notes, but none of them had been made within ten years before the commencement of the action, except an endorsed payment on each one of them of 25 cents, bearing date 5 November, 1890. The defendant contends that his intestate made no such payment as the last mentioned, and this is the issue. If such payments were made, the plaintiff is entitled to judgment; and if not made, the defendant is entitled to judgment.
It was in evidence that the plaintiff and defendant's intestate were brother and sister, and that plaintiff is quite an old lady, and that these endorsements of 25 cents are in the handwriting of one J. H. Alford, a son of plaintiff, who was acting as her agent at the time they bear date. Upon this testimony the plaintiff offered these endorsements in evidence. Defendant objected, and his objection was sustained.
(217) The plaintiff then offered as a witness Mrs. S. B. Harris, *Page 135 who testified as follows: "I knew Simon Alford; don't remember when he died; it has been about three years ago; he was her uncle; he was in the habit of visiting at their house; the last time he visited was the year he died; don't remember how long before he died; at the last time he had a conversation with witness' mother about losing his sheep and horses; talked about crediting some brandy; spoke of the notes; he said credit the brandy on his note; that would be the only way it would ever be paid. He brought it up, talking about paying them; said send down there and get brandy and credit on his notes; it would be the only way he could ever pay it."
Plaintiff then introduced J. H. Harris, who testified as follows: "I am a son-in-law of plaintiff; knew Simon Alford. Mrs. Young is at home; saw Alford at Mrs. Winnie Young's not long before he died. Simon had been over to the still. Witness stayed with Mrs. Young about three years after he was married. Simon Alford was there. Winnie said she wanted brandy, but she didn't have the money, and Simon said, `Why don't you send down and get some brandy from him?' She said she didn't have the money, and he said he owed her more than he would ever pay her. `You send down and get the brandy and let that go on' — he didn't say on what; he said he owed her more than he would ever pay her in his lifetime, but there would be enough left after he was dead to pay her. She said she would never trouble him as long as he lived. Went to Simon's for Winnie after Simon got sick; when she got ready to start she got a quart of brandy, took out some money and said she thought she would pay him for the brandy, and he said no, that he owed her more than he would ever pay her, and let that go on. She said she thought he (218) needed some money. Brandy was worth 75 cents per quart.
D. E. Harris testified that the plaintiff, Winnifred Young, had been feeble for a good many years.
The court then allowed these endorsements to be read to the jury, and the defendant excepted.
These notes being barred by the statute, they could only be revived by a written acknowledgement or a payment made on them by defendant's intestate. There is no claim that he revived them in writing. And the question is, did he do so by making a payment in 1890, as alleged by plaintiff? The jury have found that he did, and this ends the matter, unless there was error committed by the court on the trial. The defendant says there was, as is pointed out by his exceptions.
Defendant's first prayer for instructions asked the court to charge that where the statute of limitations is pleaded it devolves on the *Page 136 plaintiff to show that his action was not barred. This prayer was given.
In defendant's second prayer for instruction he asked the court to charge "that unless the jury are satisfied that defendant's intestate intended that the alleged payments, if he made them, should renew his obligation upon the bonds, they will return a verdict for the defendant." This prayer was refused, and defendant excepted. In this there was no error. If the payment was made, and nothing else appearing, the law presumed the intention, and it was not necessary for the plaintiff to prove what the law presumed from the fact of payment. Woodhouse v. Simmons,73 N.C. 30; Williams v. Alexander, 51 N.C. 137.
In defendant's third prayer he asked the court to instruct the jury as follows: "It is not the mere endorsement of a credit upon the notes by the holder which will have the effect of reviving the liability, but an actual payment made and received as such; and unless (219) the jury believe that Simon Alford did let plaintiff have the brandy, intending it as a payment on these notes, and that plaintiff received it, intending it as such payment, and that the brandy was an actual payment, they will return a verdict for the defendant." This instruction was given. But we bring it forward as a part of his Honor's charge.
Defendant's fourth prayer for instructions was as follows: "In order to make specific articles a payment, they must be received as payments by the holder of the note and intended as payments by the maker, or, by subsequent agreement between the parties, applied as such." This instruction was given. But we bring it forward for the same reason that we brought forward the third — as a part of his Honor's charge.
Defendant's fifth prayer was as follows: "A payment, if made at all, can only be made by the debtor; and in order to entitle the plaintiff to recover she must show to the satisfaction of the jury that defendant Simon Alford authorized her to estimate the value of the brandy herself, and to divide it into three parts, in order to credit the bonds with 25 cents each, with the view of bringing them back into date; that this act was the mutual act of the parties, and not the act solely of the plaintiff, and unless the jury do so find the facts they will return a verdict for defendant." This prayer was refused, and the defendant excepted.
The issue in this trial is as to whether the brandy was a payment, and not as to whether the plaintiff had priced it too high or too low. The only evidence as to its value was 75 cents; but if it was only *Page 137 worth half that amount, and it was made as a payment, it was just the same, in effect, so far as reviving the debts, as if it had been worth twice as much. It was the payment and not the amount (220) that revived the debt; and if it was a payment, defendant not having made the application, the plaintiff had the right to make it. Moss v. Adams, 39 N.C. 42; Sprinkle v. Martin, 72 N.C. 92;Moose v. Barnhardt, 116 N.C. 785; Long v. Miller, 93 N.C. 233. And if the plaintiff had the right to make the application, she had the right to divide it and to credit a part on each note. Sugg v. Watson,101 N.C. 188; Wittkowsky v. Reid, 84 N.C. 21.
Defendant's sixth prayer is as follows: "Unless there is evidence, outside of the credits themselves, that they were put on the bonds the day they purported to be put there, and unless there is evidence further sufficient to satisfy you as to the hand-writing of such endorsements, the defendants are entitled to your verdict, and you will answer the issue as to the statute of limitations `Yes.'" The court refused this prayer for instructions, and committed no error in doing so. The effect of the prayer was to make the statute of limitations depend upon the date of the entry or endorsement on the notes, and not on the payments. The endorsements were not payments, and did not revive the notes. This was done by the payments.Woodhouse v. Simmons and Williams v. Alexander, supra; Bank v. Harris,96 N.C. 118. The endorsements, of themselves, were not even evidence of payments, as was held by the court on the trial below, when his Honor refused to allow them to be read in evidence, upon proof of handwriting, when first offered; but when there was evidence tending to prove the payment, they then became competent evidence to show the application, and they were then allowed to be read in evidence.
It is true that a different rule prevails where an endorsed payment appears to be made before the statute bars, and when it was against the interest of the party making it. Woodhouse v. Simmons,supra. In this case, if it is shown that the endorsement was made at the time it bears date — that is, if it is shown to have been made before the statute had become a bar — the endorsement (221) then becomes evidence of the payment. Woodhouse v. Simmons and Williams v. Alexander, supra. But still it is not the endorsement which revives the note, but the payment (Bank v. Harris,supra), and the endorsement in such cases as this becomes evidence of the payment. Williams v. Alexander, supra.
The defendant's eighth and ninth prayers were given, with very slight modifications, and defendant was not prejudiced by these *Page 138 modifications. Besides, the modifications were proper, and the law involved in them has not been discussed in what we have said above.
The defendant's tenth, eleventh, twelfth and thirteenth prayers were properly refused by the court. The tenth is as to whether the brandy was a payment, and as to its value. The eleventh is as to the plaintiff's right to "split" it up and apply it as a payment on the three notes, and the twelfth is also as to the right of plaintiff to make the application — all of which have been discussed and disposed of in what has already been said.
The thirteenth prayer presents the main point in the case, as to whether there was any evidence of payment or any such evidence as should have been submitted to the jury. If there was not, the defendant was entitled to this prayer. Wittkowsky v. Wasson, 71 N.C. 451;State v. Vinson, 63 N.C. 335. This rule is well established, but where the evidence is slight there is often difficulty in making the application; and in such cases it is the safe rule to submit the question to the good sense of the jury. State v. Allen, 48 N.C. 257. It is true the evidence of this payment was not very positive. But there was certainly some evidence; there was more than a scintilla — more than there was in Wittkowsky v. Wasson, or S. v. Vinson, supra — more than would authorize the court in saying there was no evidence (222) and to take the issue from the jury; and had his Honor done so, he would have committed an error which would have entitled the plaintiff to a new trial. This being so, it cannot be error in the court to submit the issue of payment to the jury; and as the jury have found the payment, and as we find no error in the record, the judgment must be affirmed.
This opinion does not overrule the case of Young v. Alford, 113 N.C. 130. It was before this Court at that time on quite a different state of facts. It then presented two questions — one as to whether the endorsed payments after the claim is barred by the statute were evidence of actual payment — and the Court held they were not. This was held to be so on the trial below, and this question is not presented by this appeal, but in the discussion we have sustained that ruling. The other question was as to whether the indebtedness, which would be a counterclaim, would rebut the statutory bar or revive the indebtedness when barred. That question is not presented by this appeal; but if it were we would sustain that ruling. The judgment is
Affirmed.
Cited: Weeks v. R. R., 119 N.C. 742; Spruill v. Ins. Co., 120 N.C. 149;S. v. Gragg, 122 N.C. 1091; Gupton v. Hawkins, 126 N.C. 83; Bondv. Wilson, 129 N.C. 388; Lee v. Manley, 154 N.C. 246. *Page 139