Fishell v. . EvansFishell v. . Evans
- Reporters:
- , ,
- Before:
- Connor
On 8 Junе, 1892, F. O. Fishell executed his promissory note in words and figures as follows :
“One day after date I promise to pay to thе order of J. A. Fishell and wife the sum of two hundred dollars ($200), for value received, in the purchase of the Kimble plaсe. This note, together with all interest at the rate of 8 per cent, to be paid at or before my death, if not paid before.
“This 8 June, 1892. Interest paid semiannually.
“F. O. Fishell.”
F. O. Fishell died on 25 October, 1920; defendants duly qualified as his administratrices on 1 November, 1920.
Summons in an actiоn entitled “J. A. Fishell v. Maggie E. Evans et al., Administratrices of F. O. Fishell” was issued on 23 January, 1923; a duly verified complaint was filed in said aсtion, in which plaintiff J. A. Fishell demanded judgment upon the note above described. Duly verified answer was filed by defendants on 23 February, 1923, in which they denied the execution of said note by F. O. Fishell.
Thereafter, on 5 January, 1924, Leah H. Fishell, wife of J: A. Fishell, wаs, upon her own motion, made a party plaintiff in said action, the summons being amended by including her name therein. An amended complaint was thereupon filed on 22 April, 1925, in which plaintiffs J. A. Fishell and his wife, Leah H. Fishell, allege that they arе joint owners of said note, and demand judgment’ that they recover jointly of defendants the amount due thereon. Dеfendants in their answer to the amended complaint, among other defenses, plead the three-year statute of limitations in bar of plaintiff’s recovery on said note.
The second and third issues submitted to the jury upon the trial in Fоrsyth County Court are as follows:
“2. Is the cause of action of the plaintiff J. A: Fishell barred by the statute of limitations? Answer’:
*662 “3. Is the cause of action of the plaintiff Leah H. Eishell barred by the statute of limitations ? Answer
In apt time defendants requested the court to charge the jury as follows: “If you believe the testimony, you will answer the second and third issues ‘Yes.’ ” The court refused to so charge, and defendants excepted.
The court thereupon charged the jury as follows: “The court charges you, upon the record, that your answer to the second and third issues will be ‘No.’ ” Dеfendants excepted to this charge.
Defendants’ assignments of error, based upon the foregoing exceptions, were not sustained upon their appeal to the Superior Court. In this defendants, upon their apрeal to this Court, contend there was error.
Plaintiffs J. A. Eishell and Leah H. Eishell, his wife, are joint payees, and, as they аllege in their complaint, joint owners of the note sued upon. Neither of them can, therefore, recоver on said note in, an action in which he or she alone is plaintiff. “Where a bill or note is made payablе to several persons, or is endorsed or assigned to several, they are joint holders and must sue jointly as such.” 8 C. J., 846. In Sneed v. Mitchell, 2 N. C., 292, it is sаid: “The reason why a contract made with several persons jointly must be sued by all is because if they were to suе severally they could recover only their several proportions; no one could recover all to the exclusion of the others; and if each could recover only his proportion, then the defendаnt upon one contract would be subject to as many suits as there were persons with whom he made it. If one might sue alone, by the same reason, each of them might sue alone. All this mischief is avoided by one joint action brоught by all.” See Phœnix Assur. Co. v. Fristoe, 53 W. Va., 361, 44 S. E., 253; also, Dotson v. Skaggs (W. Va.), 87 S. E., 460; L. R. A., 1916 D, 761.
The complaint filed by J. A. Fishell, in which he alone demanded judgment upon the note set out in the complaint, was subject to demurrer, for it appeared upon the face thereof that he was not the real party in interest. C. S., 446; C. S., 511. The real parties in interest, to wit: J. A. Eishell and his wife, Leah H. Eishell, did not become plaintiffs in the action to recover upon said noté until 5 January, 1924, on which date Leah H. Eishell, by amendment to the summons, was made a party plaintiff with her husband, J. A. Eishell. Prior to said date, no action had been commenced by the real parties in interest on the note which stopped the running of the statute of limitations on the right of action which accrued at thе maturity of the note. The court had power to amend the summons by allowing the motion of Leah H. Eishell that she be mаde a party plaintiff. C. S., 547. But as the result of this amendment was to constitute a new action against defendants, it did not *663 deprive them of the right to plead the statute of limitations in bar of recovery in such action. Reynolds v. R. R., 136 N. C., 345; Goodwin v. Fertilizer Works, 123 N. C., 162; Sams v. Price, 121 N. C., 392. Eor the purpose of the defense based upon such plea, this action was commenced on 5 January, 1924. As more than three years had then elapsed since the death of the maker of the note, on 25 October, 1920, the action is barred as against both plaintiffs, whether the action upon the note accrued at the death of the maker, as contended by plaintiffs, or one day after the date of the note, to wit, 9 June, 1892, as contended by defеndants. It is therefore immaterial, for the purpose of passing upon the above assignments of error, to dеcide when the note became due. In any event, upon the facts appearing upon the record, the action is barred as to both plaintiffs. There was error in the refusal of the judge of the Superior Court to sustain defendants’ assignments of error based upon the exceptions as stated. These assignments of error should hаve been sustained and a new trial ordered.
In view of our decision, we do not deem it necessary to discuss or to decide other assignments of error relied upon by defendants upon their appeal to this Court. It is manifеst that upon the uncontroverted facts plaintiffs’ action is barred, and that they are not entitled to recover in this action. The judgment is
Eeversed.