Opinion
(August Term, 1851.)
1. A man, who is sued in an action of debt, and does not prove, on the trial at law, payments which he alleges he has made, can have no relief in equity, unless he can show some fraud or circumvention practiced, to prevent his making the proof.
2. In regard to new matter, introduced by a defendant in his answer to an injunction bill, there is no distinction; Where the bill charges the receipt of money and a general accountability, and the answer admits the receipt, and seeks to account for the money by alleging its application to some particular purpose, then the injunction will not be dissolved on the answer; but where the bill charges a payment on a particular account, and the answer denies that any payment was made on that account, and accompanies the denial with an admission that a certain sum was received, as a payment on some other account; for there is no confession and avoidance by new matter, but a positive denial of the allegation, together with an explanation of a circumstance, relied on to give color to the allegation.
APPEAL from the Superior Court of BUNCOMBE, Spring Term, 1851, Settle, J., presiding.
N.W. Woodfin for the plaintiff.
Avery for the defendant.
The case is stated in the opinion of the Court.
In 1837, the defendant placed in the hands of the plaintiff, for collection, three notes — one on Lewis, for $25, and two on Greenlee, the amount of which is not admitted by the pleadings. The plaintiff has collected the money; and in August, 1839, paid to the defendant $20, for which he took a receipt, reciting that it was on account of the debts on Greenlee. In 1846, the defendant demanded the balance, and soon thereafter brought an action at law, and recovered judgment for $170.
The plaintiff alleges, that, in 1838, he paid to the defendant $25, the amount of the debt on Lewis. In 1840, he paid $45 to one (251) Holcomb, for the defendant; and, in 1846, he paid to the defendant $15; but, as he had given no receipt — he required none — has no means of proving these payments, "except, perhaps, the one to Holcomb, by following him to Kentucky"; and these three payments, with the $20, for which he has a receipt, he thinks, is about the amount of the debts, which he had undertaken to collect; but he made no entry, and cannot ascertain the precise amount of the notes on Greenlee.
He further alleges, that "the defendant brought suit against your orator to McDowell Superior Court of Law, on account of said debts; and, on meeting said defendant, at the Spring Term, 1850, he assured your orator that he would allow him all just credits, and come to a fair settlement. Your orator, with a view to settle the suit, and avoid the trouble of attending Court so far from home, proposed to pay him $25 for a compromise: That your orator verily believed and yet believes, that he had paid the defendant all that was due him (especially if your orator should be allowed a reasonable compensation for his trouble). To this the defendant remarked, that he had to go home that evening, but would return next morning, and settle, but failed to do so; and afterwards promised to meet your orator at Buncombe, and settle, but failed to do so: and at Fall Term, 1850, in your orator's absence, and while he was relying on the defendant's promise to settle the matter amicably, the defendant pressed the trial and obtained judgment for about $170," of which the plaintiff was not informed until several months afterwards.
The prayer is for an injunction, except as to the sum of $25, which, the plaintiff alleges, will more than cover the amount fairly due to the defendant.
The defendant denies, that he ever received any payment in (252) respect to the money collected by the plaintiff, except the $20, for which he gave a receipt, and which was allowed as a credit on the trial at law. He avers, that the sum was all that the plaintiff had frequently assured him he had been able to collect, and he remained in ignorance of the fact, that he had collected the whole amount of the debts, until some time in 1846. As to the $45, alleged to have been paid to Holcomb, he avers there was no such payment; and says, that, in 1838, he purchased a note on said Holcomb, which was sold at public auction, at the price of $45, and not having money enough about him at the moment, he borrowed part of it of the plaintiff, and at the same time gave him Holcomb's note to collect. A short time afterwards, he paid $18 in bank for the plaintiff, and after the note of Holcomb was collected, he allowed him to retain out of the money, a sum which, with the $18 repaid the money borrowed.
As to the $15, he denies that it was paid in respect of the debts, which the plaintiff had collected; and says, it was paid in part of a debt due him for professional services, and was so expressly agreed on at the time.
Further answering, the defendant avers, that, when he met the plaintiff, at Spring Term, 1850, of McDowell Superior Court, he was ready to try the suit, but the plaintiff suggested, "he would prefer to settle amicably." This defendant was about starting home, and told him to call on his attorney, who was authorized to act for him. This defendant was informed on the next morning, by his attorney, that no amicable settlement could be made. This defendant then notified the plaintiff, that negotiations were at an end, and he would press for trial at that term, if the case were reached; but it was not reached at that term. This defendant denies that the plaintiff offered him $25 to compromise, at any time. He denies, that he agreed to meet the (253) plaintiff at Buncombe Court and settle amicably, or that he gave him any reason to expect that the suit would be settled in any other way, after Spring Term, 1850, than by a regular trial at law; and he denies, that the plaintiff was prevented from attending court at the time of trial, by any promise of this defendant. On the contrary, he avers, that the plaintiff had express notice that the suit would be pressed for trial as soon as it was reached. And he is informed and believes, that the plaintiff knew the suit would be reached, and refused to attend of his own accord; that J. W. McElroy, one of the defendant's witnesses, saw the plaintiff shortly before the Fall Term, 1850, of McDowell Court, informed him that the suit would be tried, and enquired if he was going to attend court; whereupon, the plaintiff replied that he would not attend, for he relied upon the statute of limitations as his defense, and asks this defendant no favors in the suit. And the defendant avers, that the whole sum recovered by him at law, is justly due — the trial was fair, and the plaintiff appeared by counsel, who had been employed from the commencement of the suit."
The answer is full and satisfactory, and, we think, fully denies the plaintiff's equity.
The bill seeks to have a new trial in this Court, in respect to the alleged payments, which the plaintiff failed to prove upon the trial at law. If a party either will not, or cannot, make good his defense at law, it is his folly, or his misfortune. The fact, that he has made payments, will not, of itself, raise an equity against the judgment. There must be some fraud and circumvention practiced, whereby it is put out of his power to prove the payments.
It further alleges (and this is the foundation of the plaintiff's equity), that he was, by false promises, induced not to attend Court, and "surprised" by a judgment being taken in his absence.
It does not appear how the plaintiff was prejudiced by being (254) absent at the time of the trial. If he had been present, he had no means of proving his payments; and, suppose he could have filed an affidavit, and continued the case to give time for a bill of discovery, it would have availed him nothing, because the result would have been the present answer, which positively denies the payments, and, of course, would not have aided in the trial of the issue, on the plea of payment. So that, as it turns out, he was, in fact, not prejudiced. But, apart from this view, the answer denies the fraud, circumvention, and false promises, out and out, and sweeps away the ground work of the plaintiff's equity.
It was insisted for the plaintiff, that, when the equity of a bill was admitted, and new matter is set up as a defense, the injunction will not be dissolved on bill and answer. That is true; for, in such cases, the plaintiff's allegations are admitted, and the defendant has no proof of the allegation made by him.
It is not necessary to consider, how far the principle is applicable to this case; because the foundation of the plaintiff's equity has failed. But, as this point was pressed, it may be well to remark, that there is an obvious distinction between a case, where the bill charges the receipt of money and a general accountability, and the answer admits the receipt, and seeks to account for the money, by alleging its application to some particular purpose — and a case like the present, where the bill charges the payment on a particular account, and the answer denies that any payment was made on that account, and accompanies the denial with an admission, that a certain sum was received as a payment on some other account; for, there is no confession and avoidance by new matter, but a positive denial of the allegation, together with an explanation of a circumstance relied on to give color to the allegation.
In this case a general allegation would not have answered (255) the purpose. It was necessary to allege, that the payments were made on account of the money collected. This allegation is denied.
There is no error. The injunction ought to have been dissolved. The plaintiff must pay the costs of this Court.
PER CURIAM. Affirmed.
Cited: Burgess v. Lovengood, 55 N.C. 460; Wilson v. Mace, Ib., 9; Stockton v. Briggs, 58 N.C. 314; Molyneux v. Henry, 81 N.C. 111; Grantham v. Kennedy, 91 N.C. 154.