Whitaker v. Mitchell

Myrick, J.: 1. If the contract testified to by the witnesses Mitchell, Faulkner, and Stiles was made as stated by them, neither the plaintiffs by themselves, nor with the consent of Mitchell, could have diverted the eight-hundred-dollar check from being applied to the payment of the note in suit, without the consent of the defendants Faulkner and Langford. There was some evidence, slight though it may have been, tending to prove that such contract was not made. The Court must have believed the latter testimony to have been true; therefore, we can not say the findings are not supported.

2. The Court did not err in refusing to strike out the testimony of Whitaker as to Langford putting in the note in controversy on the settlement with the creditors. The testimony was addressed merely to the fact as to whether a list of claims was made; not as to the contents of the paper.

3. The allegation in the answer that the plaintiffs informed the defendants Faulkner and Langford that the note had been paid by Mitchell, presented no issue upon which a finding was necessary. The fact that he so informed them might be competent testimony upon an issue of payment, but was not an ultimate fact to be found.

Judgment and order affirmed.

Sharpstein, J., and Morrison, C. J., concurred in the judgment.