#### BENJAMIN RUNYON TO THE USE OF WM. T. BRYAN *vs.*WILLIAM CLARK, et. *al.*

Where a third person pays the sum called for in a note, and takes it into his possession, it is a question of fact to be decided by a jury whether he intended to pay it off for the accommodation of the maker, or to purchase it.

AotioN of Assubípsit, tried before Manly, Judge, at the ’ Fall Term, 1856, of Beaufort Superior Court.

The plaintiff declared on a promissory note, payable to him as Cashier, and negotiable at the Washington Branch of the Bant of Cape Pear. On the back of this note was endorsed, “ I assign the within note to--, without recourse to me. Ben. Runyon, Cashier.”

The defense was under the plea of payment. *Thomas JET. JELa/rdenbwg*proved that the note in question had been discounted by the bank above named ; that after it became due, it was delivered to the attorney of the bank for collection ; that on a certain day afterwards, the said attorney and Wm. T. Bryan came together into the banking-house, the former bringing with him the note in question; he said that Dr. Bryan wished to take the note up, and that he had paid him his fee. This witness was then the teller of the bank, and received the amount of the note and the interest due thereon ; he said he then delivered it to Dr. Bryan, with the endorsement on it, but his understanding at the time was that Dr. *53Bryan intended to pay the note; that it was then the custom of the bank, whenever a note was discounted, to sign the endorsement which was printed on the blank form used by it. This was a practice not understood by the witness. The note was delivered to Dr. Bryan without any alteration and without any reference to the endorsement, and without any intention of passing the title to any one, and simply because it was'considered as paid and extinguished. • The witness said he'had no authority to make such a sale or'transfer of this or any other paper belonging to the bank.

*Burton A. Slvvpp,*the principal in the note, was examined for the plaintiff. He stated that, after the -note fell due, being short of money, he requested Dr. Bryan to take it up and hold it over for awhile against him and his sureties; that he did not expect or intend that any of the parties were to be discharged ; that he never paid any part of it to Dr. Bryan or any one else.

The blank endorsement had been filled up with the name of Dr. Bryan, but the name was immediately struck out.— This was after the suit was brought, but before the trial.

The Court was called on by the plaintiff’s counsel to charge the jury that the legal effect of the endorsement was to pass the interest in the note to Bryan, and that it could not be contradicted by parol; but his Honor refused so to charge, and told the j ury that it was a question of fact for them to decide whether Bryan intended to-pay off the note for the accommodation of Shipp, or whether he intended to purchase it; and that, in deciding this question, the parol evidence given should be considered by them. Plaintiff excepted. Yerdictfor defendant. Judgment and appeal.

*Bodman,*for plaintiff.

*Donnell,*for defendant.

Battle, J.

The alleged error of which the plaintiff complains is that his Honor refused to instruct the jury, as reques*54ted; that the transaction testified to by the witness, Harden-burg, was, in law, a purchase, and not a payment of the note in question. Had the testimony of this witness been the only evidence in the cause, we think that the plaintiff would have been entitled to the instruction which he asked. So far as that testimony goes, Dr. 'William T. Bryan was a stranger to the parties, and the money advanced by him would not have been, in law, a payment of the note; *Sherwood*v. *Collier,*3 Dev. Rep. 380. But the testimony of the other witness, Shipp, who was a party principal in the note, presents the case in another aspect. According to him, Dr. Bryan went at his instance to take up the note. It is true, he says that he did not intend that the note should be discharged, but should be held up against him and his sureties. Such might have been the intention of Dr. Bryan when he went to bank for the purpose of serving his friend. If so, it is his misfortune that he did not distinctly inform the officer of the bank of it, so that there could be no doubt that he was purchasing the note, and not paying it off. Hardenburg certainly thought that he was doing the latter, and hence arises the question, what was the true nature of the transaction between them ? was it a purchase or a payment? Upon that question there was evidence tending to support either side of it, but none establishing it conclusively either way. The blank endorsement, made long before, without any view to a sale of the note to Bryan, and of which he was ignorant, could not have the effect claimed for it by the plaintiff’s counsel. It would, at most, be only a circumstance to be taken into consideration, together with other circumstances, to prove that a purchase of the note was intended. There were other facts and circumstances related by Mr. Hardenburg, which tended to show a payment; for if Bryan chose to advance the money for Shipp, the principal in the note, it was a payment by the latter, through him, as agent. His remedy, in that case, would be against Shipp only, for money j)aid at his request, and for his use. These conflicting views, presented by the testimony, his Honor was bound to submit to the jury, and *55as- he did so fairly, the party against whom the verdict was found has no right to complain of it.

Pee CueiaM. . Judgment affirmed.