193 S.E. 151 | N.C. | 1937
Civil action to recover balance due on promissory note in words and figures as follows:
"$1,000.00. SCOTLAND NECK, N.C. June 11, 1925.
"On October 11, 1925, after date, I promise to pay to the order of E. A. Allsbrook, One Thousand and No/100 Dollars with interest at 6% per annum, after date.
"Payable at The Scotland Neck Bank, Scotland Neck, N.C. for value received.
(Singed) E. A. WALSTON. [SEAL] ....................... [SEAL]."
Three credits appear on said note, the last being for $25.00 paid on 26 November, 1930. This action was instituted 30 November, 1936.
The defendant admitted the execution of the note, pleaded that it was not under seal, and interposed by way of defense the three-year statute of limitations.
Plaintiff offered the note in evidence, admitted that the word "Seal" in brackets, opposite defendant's signature, was printed on the note before the defendant signed it, and rested.
The defendant demurred to the evidence, which was overruled, and he appeals from a directed verdict and judgment for plaintiff, assigning errors upon exceptions duly preserved.
The defendant having pleaded the statute of limitations, the burden was on the plaintiff to show that his suit was commenced within the requisite time from the accrual of the cause of action, or that otherwise it was not barred. Rankin v. Oates,
It is conceded that if the note in suit be a sealed instrument, the ten years statute, C. S., 437, applies, otherwise the three years statute, C. S., 441, is applicable; and further, that if the ten years statute be applicable, the action is not barred, while if the three years statute apply, it is barred. Trust Co. v. Clifton,
The case, then, comes to a single question: Has the plaintiff offered evidence of a sealed instrument? We think the trial court correctly answered the question in the affirmative.
It is true, the note contains no recital of a seal in the body of the instrument, nevertheless the word "Seal" appears in brackets at the end of the line, opposite defendant's signature, which is the usual place for a seal. In Hughes v. Debnam,
The plaintiff rested his case upon offering evidence of a sealed instrument. There is no proof that the maker intended otherwise. This defeats the motion to nonsuit. Baird v. Reynolds,
The case Williams v. Turner,
The authorities elsewhere are in hopeless conflict and confusion. Note, 19 Ann. Cas., 674. They abound in every variety of decision. 24 Rawle C. L., 686; 56 C. J., 889. All agree that "as a man consents to bind himself, so shall he be bound." Nash v. Royster,
The verdict and judgment will be upheld.
No error.