Dyer v. . Bray

May 22, 1935

Versions:

Stacy, C. J.

Where a note is given merely in renewal of another note and not in payment thereof, tbe effect is to extend tbe time for tbe payment of tbe debt without extinguishing or changing tbe character of tbe obligation, and, in case of default, tbe bolder may sue upon tbe original instrument. Bank v. Rosenstein, 207 N. C., 529.

*249 Speaking to tbe subject in Grace v. Strickland, 188 N. C., 369, 124 S. E., 856, Adams, J., delivering tbe opinion of tbe Court, observed: “As applied to negotiable instruments, tbe word ‘renewal,’ or ‘renewed,’ signifies more tban tbe substitution of one obligation for another. It means tbe substitution in place of one engagement of a new obligation on tbe same terms and conditions — that is, tbe 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, tbe renewal does not extinguish tbe original debt nor in any way change tbe debt, except by postponing tbe time of payment.’ Bank v. Bridgers, 98 N. C., 67. If tbe second note be given and accepted in payment of tbe debt, and not in renewal of tbe 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.”

Tbe 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 tbe record as presented, tbe question of liability was one for tbe jury. Hunt v. Eure, 189 N. C., 482, 127 S. E., 593.

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

Reversed.