260 N.C. 518 | N.C. | 1963
Lead Opinion
The demurrers to th-e complaints pose this question: Does the .provision in the notes- that the holder “.shall hav-e full power and authority” upon default to sell -the stock pledged .as security “it being understood and- -agreed that after such sale” the maker shall not -be liable for .any deficiency, require the holder to enforce collection by a sale of .the -collateral?
This question must ¡be answered by reference only to the complaint and the note Which is made a part thereof. We may not consider the “testimony” contained in -both briefs. If, .at the time of the execution .and delivery of the notes, fire parties agreed that payment 'should be enforced only by a ©ale of the collateral, such an -agreement would preclude personal liability -on the part -of the -maker in -an action ¡between tlhe parties, but thi® is a defense- which must be interposed -by answer unless it appears in the complaint itsel-f. 3 N.C. Index, Pleadings § 15; Carroll v. Brown, 228 N.C. 636, 46 S.E. 2d 715. Neither complaint alleges any such -agreement.
The notes 'in suit provide that the holder may sell the -collateral -and, if he does, the maker shall not -thereafter be liable for -any deficiency. They do not -require such a sale, and the complaints do not allege that the stock has been sold.
The parties may always contract that the pledgeor assumes n-o personal liability on the d-elbt secured by the pledge but, in the absence of isuch an .agreement, the giving of .security does not affect the right of ■action of the pledgee on the -debt o.f the pledgeor. Restatement, Securi
“The taking o.f 'collateral security for the payment of a debt does not, in the absence of a statute or 'stipulation to the contrary, ■afford any implication that the creditor is to look to it only or primarily for the payment of the debt. The obligation of 'the debtor to respond in hiis person and property is the same as if no security had been giren, 'and upon default in payment, the pledgee may elect to sue the pledgeor for his debt, without a sale of the security, and may recover a judgment in such suit against the pledgeor for the amount of the debt, without destroying or in the ■least affecting his lien on the property pledged-.”
In these cases, the parties agreed that a resort to the security for payment would discharge the -maker from any liability for a deficiency. To that extent only did they modify the general rule. So far as the record now discloses, -until the holder does resort to- the security, he may look to the maker.
The orders sustaining the demurrers are
Reversed.
Dissenting Opinion
dissenting. In case No. 451, plaintiff prayis judgment of the court against the defendant in the sum of $32,100, with interest thereon at the rate of 6%, ,and for costs. In case No. 452, plaintiff prays judgment of the court against -the defendant in the sum of $3,-062.50, with interest thereon at the rate of 6%, and for -costs. In each case -the -complaint alleges: “A copy of said note is attached hereto marked ‘Exhibit A’ -and -a-sked to be made a part of -this complaint 'as fully ais if set out herein.”
It is well-settled 1-aw that an exhibit attached to a complaint and made -a part thereof -can be c-onsi-dered in passing upon a demurrer. Yeager v. Dobbins, 252 N.C. 824, 114 S.E. 2d 820; Moore v. W.O.O.W., Inc., 253 N.C. 1, 116 S.E. 2d 186; Talman v. Dixon, 253 N.C. 193, 116 S.E. 2d 338; Sale v. Johnson, Commissioner of Revenue, 258 N.C. 749, 129 S.E. 2d 465; 71 C.J.S., Pleading, sec. 257; 41 Am. Jur., Pleading, sec. 246; 39 N. C. L. R. 330, Incorporation by Reference. Carroll v. Brown, 228 N.C. 636, 46 S.E. 2d 715, -cited in the majority -opinion as controlling, is -clearly distinguishable. The opinion in that case states: “The .allegation of the plaintiff -to the effect that the note upon which he bottoms his action, dnaw-s interest from date until p-ai-d -at the rate of six per cent per annum, is denied by the defendants in their answer.
It appears by the mote in each .case attached to each -complaint and made a .part -thereof as fully ais if set out therein, which mote is the foundation of each case, that the parties agreed that payments should be enforced only by .a sale of the -collateral, and consequently such an agreement precludes personal liability in each case on the part of the maker in these 'actions between the parties. In my opinion, the judgment in each case ibelow sustaining the demurrer to- each complaint should be affirmed, -and I so vote.
