Dyer v. . Bray

180 S.E. 83 | N.C. | 1935

Civil action to recover balance alleged to be due on four promissory notes aggregating $19,000.

Plaintiff offered the notes in evidence; proved their execution by the defendants; showed that they were given for value; were presently due and unpaid, and adduced testimony to the effect that the plaintiff "is now the owner and holder of those notes" — the notes sued upon.

The defendants showed that the notes in suit had been renewed by the execution of other notes, and contended that plaintiff could only declare upon the renewal notes and not upon the original ones.

In reply, plaintiff offered the bank note teller, who testified: "The four notes, which I have identified as defendants' Exhibits 2, 3, 4, and 5, came into the bank as renewal notes of those other notes, but the original notes were not turned loose, they were still held. . . . The original notes were never surrendered; they were held."

From a judgment of nonsuit entered at the close of all the evidence, the plaintiff appeals, assigning errors. Where a note is given merely in renewal of another note and not in payment thereof, the effect is to extend the time for the payment of the debt without extinguishing or changing the character of the obligation, and, in case of default, the holder may sue upon the original instrument.Bank v. Rosenstein, 207 N.C. 529.

Speaking to the subject in Grace v. Strickland, 188 N.C. 369,124 S.E. 856, Adams, J., delivering the opinion of the Court, observed: "As applied to negotiable instruments, the word `renewal,' or `renewed,' signifies more than the substitution of one obligation for another. It means the substitution in place of one engagement of a new obligation on the same terms and conditions — that is, the reestablishment of a particular contract for another period of time. Kedy v. Petty, 54 N.E. (Ind.), 798; National Bank v. Fickett, 50 S.E. (Ga.), 396; Griffin v.Long, 131 S.W. (Ark.), 672; Hyman v. Devereux, 63 N.C. 624; Kidder v.McIlhenny, 81 N.C. 123; Bank v. Hall, 174 N.C. 477. In 8 C. J., 443 (656), it is said: `Where a note is given merely in renewal of another note, and not in payment, the renewal does not extinguish the original debt nor in any way change the debt, except by postponing the time of payment.'Bank v. Bridgers, 98 N.C. 67. If the second note be given and accepted in payment of the debt, and not in renewal of the obligation, a different principle will apply. Wilkes v. Miller, 156 N.C. 428; Collins v. Davis,132 N.C. 106; Smith v. Bynum, 92 N.C. 108."

The plaintiff made out a prima facie case. C. S., 3033 and 3040; Bank v.Rochamora, 193 N.C. 1, 136 S.E. 259; Mayers v. McRimmon, 140 N.C. 640,53 S.E. 447; Tyson v. Joyner, 139 N.C. 69, 51 S.E. 803.

It would seem, therefore, upon the record as presented, the question of liability was one for the jury. Hunt v. Eure, 189 N.C. 482,127 S.E. 593.

There was error in dismissing the action as in case of nonsuit.

Reversed.