There was judgment for the defendant, from which the plaintiff appealed.
The facts are stated in the opinion. The plaintiff alleged that the defendant was indebted to him in the sum of twenty-three dollars as a balance due on a bond for $95, secured by a mortgage.
(77) The defendant claimed a credit of $22.50, alleged to have been paid in an order on McGuire Bryan for that amount, which was accepted by the plaintiff.
There was evidence on the part of the plaintiff tending to show that the defendant gave the plaintiff the order, but that it was received with the understanding that if paid by McGuire Bryan it would be credited on defendant's bond; that the plaintiff sent the order to McGuire by a boy, with instructions to bring it back if not paid, and that the boy *Page 87 handed the order to McGuire, who refused to give it back, saying that "Knott owed him and he was going to hold the order."
There was evidence on the part of the defendant tending to show that he gave the order for $22.50 to the plaintiff in payment of the bond, and the plaintiff took it and went off with it; that the order was sent to McGuire by a boy, and that McGuire accepted it and put it in his pocket, and sent a message by the boy to the plaintiff that he would settle with him that evening or pay it; that plaintiff went to McGuire for a settlement, when a controversy arose between them as to the state of their accounts, and upon disagreement plaintiff refused to settle with McGuire, and said that he would warrant the defendant on his bond. Plaintiff did not tell McGuire to credit the amount on his (plaintiff's) account, as testified to by McGuire, "after crediting his account by the order he still owed him" (McGuire). As testified to by the plaintiff, upon a settlement McGuire would be indebted to him.
The following issues were submitted to the jury:
"Is the defendant indebted to the plaintiff? and if so, in what sum?"
The answer was, "Fifty cents and interest."
1. Upon the trial "the plaintiff asked the court to charge the jury that there was no evidence to go to them that Knott had accepted the Whitfield order on McGuire Bryan as money, or that he agreed to credit the $95 bond by said order." This was declined, and (78) plaintiff excepted.
There was some evidence. The defendant gave the plaintiff the order. He says, as stated in the case of appeal, "he (plaintiff) came for money, and I gave him the order." He says that it was in payment, and it was clearly the duty of the plaintiff either to have refused to accept the order, or, if accepted conditionally by him, to have presented it for payment, and if payment was refused to have returned it to the defendant. The evidence was conflicting, and the instruction was properly refused.
2. The court was asked to charge "that in any aspect of the case the plaintiff must recover $23 and interest." This was declined, and the plaintiff excepted.
The plaintiff only alleged a balance of $23 to be due.
The action is for a balance due on the bond, and if the order was accepted in payment of that balance of that plaintiff should have presented it properly for payment, and if protested or payment was refused, he could have then looked to the defendant for payment.
3. The court was asked to charge "that if McGuire came by the order wrongfully, he could not use it without Knott's authority." This was declined, and plaintiff excepted.
After the order was delivered by the defendant to the plaintiff and accepted by him, it passed out of the control of the defendant, and if, *Page 88 without any fault of his, a controversy arose between the plaintiff and McGuire as to the ownership of the order, we are unable to see how the defendant could be affected by it, or why he should be involved in the controversy between them. If McGuire had wrongfully gotten possession of the order, the plaintiff should have sought redress against him.
It was not the defendant's duty, nor do we see how it was in his power, to remedy the wrong. Could he charge that it was wrongfully in the possession of McGuire? Or upon settlement, could he resist it as an item placed to his debit in his account with McGuire?
(79) 4. "Among other things the judge charged that in all civil cases the plaintiff must make out his case by a preponderance of the evidence." To this the plaintiff excepted and asked his Honor to charge that in this case the defendant must establish his contention by a preponderance of the evidence. This was denied. His Honor recited the evidence and charged "if the order was given by Whitfield and accepted by Knott with the understanding that it should be credited on the bond and after acceptance it was ratified by Knott, then Whitfield was entitled to it as a credit; if not, he was not." Plaintiff excepted.
Undoubtedly the burden of proving an affirmative defense is on the party who makes it. This, as was truly said by counsel for the plaintiff, "is common learning," and needs no citation of authority, but as applicable to this case we can see no just ground of exception on the part of the plaintiff, either to the refusal to charge as requested or to the charge as given. It is not denied that the plaintiff received from the defendant the order for $22.50, whether as a payment as the defendant says, or conditionally as the plaintiff says, and it rested upon him to account for it.
The testimony of McGuire tends to show that there was no question about the order until after he and the plaintiff had entered upon a settlement "when he (the plaintiff) found that after crediting his account by the order he still owed" him (McGuire) and the exceptions that "there was no evidence to go to the jury to support the charge of his Honor" cannot be sustained.
No error.
Cited: Hicks v. Kenan, 139 N.C. 346. *Page 89
(80)