Jones v. . Wilson , 104 N.C. 9 ( 1889 )

We are unable to see how the defendants were prejudiced by the admission of the testimony of the witness Skinner, to effect that the defendant Mizell had "recommended the material highly and had told witness that it was in good order." It appears to have been in reply to the testimony of Mizell "that (before the sale) he told Mr. Skinner that defendants had put a good deal of new material in there, and that plaintiffs would have little to buy." The issue was simply as to whether the defendants had delivered to the plaintiffs the property which they had purchased, and the testimony was entirely irrelevant. There was no exception to the charge, and we must assume that his Honor explained to the jury the proper meaning of the issue and called their attention to the testimony applicable thereto. There is nothing in the record which discloses that defendants "suffered or might have suffered any prejudice" by the admission of the testimony. Glover v.Flowers, 101 N.C. 134; Wagner v. Ball, 195 N.C. 323. The second exception is therefore overruled.

The other exceptions involve the correctness of his Honor's (15) charge upon the question of consideration.

There was testimony tending to show that the plaintiffs refrained from bidding at the sale because of the promise of the defendants "that if they bought in the property for less than the debt they would cancel the notes" of the plaintiffs, which were secured by a deed in trust upon the property. There was also testimony tending to show that the plaintiffs had an "outside bidder" who would have bid at least five thousand dollars. The property sold for only $4,400, and now the defendants wish to recover by counterclaim the balance due upon the notes. The defendants in support of their contention rely upon the cases of Mitchell v. Sawyer, 71 N.C. 70;McKenzie v. Culbreth, 66 N.C. 534. They urge that the value agreed to be accepted is capable of being made certain, that this amount is less than the debt, and that there was therefore no consideration. They argue that this case does not fall within the third exception mentioned in McKenzie v.Culbreth, supra. That case decided "that an agreement by a creditor to receive a part in discharge of the whole of the debt due to him by bond is an agreement without consideration and therefore void."

The exception mentioned was, that "if something other than money, and really of less value than the debt, is agreed upon and received in satisfaction, the court will not consider the value to be other than as the parties have agreed upon." No money was agreed upon here, but the alleged agreement was that if defendants bought in the property for less than the debt they would cancel the notes. The consideration of this promise was that the plaintiffs should not bid. This, it would seem, was "something other than money," and the parties having themselves fixed the value, this value so fixed, the court says, in the cases mentioned, will not be considered. Apart from this the law, as declared in McKenzie's case and Mitchell v. Sawyer, supra, has been (16) abrogated by the Code, sec. 574, which provides that the acceptance of a less amount than that which is due shall be a full and complete discharge. We therefore conclude that there is

No error.