majority">Clark:, C. J.

On 21 June, 1904, tie plaintiff and tie defendant Caioon executed a joint note under seal at sixty days to Join W. Sykes for $600, witi interest from date. Tiis bond was secured by ciattel mortgage on certain logs. It fell due 21 August, 1904, and was paid by tie plaintiff by cieck for $606.90, dated 27 September, 1904. Tiis action for contribution was begun 25 October, 1910, and tie defendant pleaded tie statute of limitations.

Tie plaintiff testified tiat wien tie bond fell due tie defendant said ie was not prepared to pay it, and asked tie plaintiff “to take up tie note and bold tie same until ie could pay iis part of it, which would be in a short time; tiat tiis was all tiat was said to iim by Caioon about paying tie note.” Tiat ie paid tie note and tiat it was tien indorsed by tie obligee as follows:

“Pay tie witiin note to W. E. Liverman, without recourse on me. 27 September, 1904. J. W. Sye:es.”

Tie judge instructed tie jury tiat if they believed all tie evidence to answer tie issue as to tie statute of limitations “Yes.” Plaintiff excepted. Yerdict and judgment accordingly. Plaintiff appealed. Tiis presents tie only point in tie case. Tie chattel-mortgage security cuts no figure, as tie logs were tie joint property of tie obligors and have doubtless long since been used.

In Sherwood v. Collier, 14 N. C., 381, Chief Justice Ruffin said: “A payment by any one of two or more jointly, or jointly and severally, bound for tie same debt, is payment by all. It is true that if payment be not intended by tie purchaser, there is a difference, but tiat can only be by a stranger, or by using tie name of a stranger, to whom an assignment can be made *189when jointly liable. Tbis is upon tbe score -of tbe intention, and because tbe plea of payment by a stranger is bad upon demurrer. If tbe assignment of a joint security be taken to tbe surety bimself, there is an extinguishment, notwithstanding the intention; because an assignment to one of his own debt is cm absurdityTbis case bas been often cited and approved. See Anno. Ed.

Here tbe payment was made by one of tbe principals, and not even by a surety, and there is no security to be assigned. Tbe evidence makes out simply a payment by one of tbe joint obligors and a request by tbe other to bold up tbe note “until be could pay bis part of it, which would be in a short time.” Tbis request implies no more than a promise by tbe defendant to pay bis half which tbe law raised from tbe fact of payment without any express promise. There was no promise not to plead tbe statute if delay was given, as is held necessary, Hill v. Hilliard, 103 N. C., 34; nor, indeed, was there any promise to delay given by plaintiff.

Tbe indorsement of tbe note to tbe plaintiff, one of tbe obligors, by tbe creditor, in no wise altered tbe fact that it was a payment and that tbe note was canceled thereby. Tbe plaintiff could not bold tbe note and sue upon bis own obligation which be bad already paid. He was entitled to recover of tbe defendant one-balf of tbe sum be bad paid. Such action should have been brought within three years. Tbe plaintiff not having done so, is barred by tbe statute of limitations, which has been pleaded by tbe defendant. Tbe instruction of bis Honor was correct.

No error.

Citation profile

How this case has been treated — in progress