(December Term, 1833.)
1. The expression, "liquidated accounts," used in the Act of 1826, c. 12, as explained by Laws 1829, c. 32, means "signed accounts" — and, therefore, where A and B were parties in trade, and A gave his own promissory note for a debt of the firm, and B wrote a letter to A stating that he would pay the debt to the creditor, it was Held, that the account was not thereby liquidated as against B so as to give exclusive jurisdiction of the demand to a single magistrate, although the note was given, letter written, and action brought before the Act of 1829.
2. Receiving the promissory note of one partner in payment of an open account against the firm, and delivering up the account in writing, does not of itself discharge the original demand.
This was an action of ASSUMPSIT, brought in 1827, for goods sold and delivered to the defendant, in which the plaintiff claimed the sum of eighty dollars and seventy-five cents, and was tried on the plea of non assumpsit, in MECKLENBURG, before his Honor, Judge Donnel.
No counsel appeared for either party.
The defendant and one Thompson were partners in trade, and became indebted as such to the plaintiff for goods sold and delivered. Subsequently to the sale, Thompson gave his own individual promissory note to the plaintiffs for the price, and on the trial the plaintiff gave in evidence a letter from the defendant to Thompson, complaining of the manner in which the business of the firm had been transacted, but stating that he would pay to the plaintiffs eighty dollars when certain moneys should be collected. It appeared that at the time Thompson's note was (91) taken, he had been called on by an agent of the plaintiffs for a settlement of their account — the account was presented — its correctness admitted by Thompson, and his note given in payment thereof, and the account given up to him.
The presiding Judge being of opinion that the settling of the account by giving the note in payment, was a liquidation thereof, within the meaning of Laws 1826, ch. 12, dismissed the suit and the plaintiff appealed.
By the act of 1789, Rev., c. 314. a plaintiff may bring his action, either jointly or severally, on the assumptions of partners and others. It is not pretended, that the individual note of Thompson was agreed to be taken by the plaintiffs in discharge of the partnership debt; and a note given even by all the partners would not extinguish the original undertaking to pay for the goods delivered, like a bond or judgment taken for the same. The plaintiffs still might maintain their action for goods sold and delivered, provided they produced and delivered up the note on the trial, or proved it was destroyed. ( Farr v. Price, 1 East., 55, Dangerfield v. Wilby, 4 Esp. R. 159.) If the defendant had been bound on the note given by Thompson, then the plaintiff's account would have been liquidated, and the sum being under one hundred dollars, it would have been within the jurisdiction of a justice of the peace. But the individual note of Thompson did not liquidate the plaintiff's account quoad the defendant; it was still, as to him, an open account; and the letter which he wrote to his partner, did not have the effect of giving the note a more extended operation than it had before; nor did it liquidate the plaintiff's claim, even as it related to himself, so as to bring it within the meaning and operation of the act of Assembly, for the plaintiff must still prove on the trial, the delivery of the articles. Although Thompson's note was given and the defendant's letter was written before the act of 1828 was passed, bringing liquidated claims under one hundred dollars in amount, within the jurisdiction of a justice of the (92) peace, still a subsequent act was passed in the year 1829, declaring that the meaning of the words "liquidated accounts," mentioned in the first act, was to be confined to signed accounts. The defendant never signed the account, and Thompson's note still leaves the account open and unliquidated as to the defendant. The action should not have been dismissed.
PER CURIAM. Judgment reversed.
Cited: Mauney v. Coit, 86 N.C. 470; Cotton Mills v. Cotton Mills, 115 N.C. 487; Bank v. Hollingsworth, 135 N.C. 571; Chemical Co. v. McNair, 139 N.C. 334.