91 S.E. 361 | N.C. | 1917
There were two civil actions on notes, respectively for $275 and $240, begun in the recorder's court and tried on appeal in the Superior Court, where, by consent, the actions were consolidated. These notes were signed by the defendants J. J. Spain and J. E. Bulluck and were executed to Winslow Brothers for certain mules bought of them. The defendant Bulluck signed these notes as surety for Spain, but the suretyship does not appear on the face of the note. The defendant Bulluck contended that said notes were assigned by the payees to the plaintiff in pursuance of a contract between it and the defendant Spain that the notes would be held by the plaintiff until the succeeding fall, such agreement being without the knowledge or consent of the defendant Bulluck. Both Spain and Bulluck are primarily liable on said notes under our Negotiable Instruments Law. Rev., 2342; Rouse v. Wooten,
There is no evidence of any act on the part of the plaintiff company which would release the defendant Bulluck from the notes. The defendant Spain testified that the only agreement of the plaintiff was to "take up and carry the note till the fall." There was no evidence of any binding agreement not to sue on the note for any definite period, nor that Bulluck was misled by the plaintiff and thus prevented from asserting his rights by a quia timet notice under Revisal, 2846. There was an expression of an intention not to force collection till the fall. There was no payment of interest in advance for a stated time, which would have been an implied promise. Revell v. Thrash,
The mere fact that the plaintiff stated that he would "take up and carry the notes," without any agreement to do so for a definite and fixed period, did not prevent the plaintiff from bringing an action nor debar the defendant Bulluck from giving a quia timet notice under Revisal, 2846, which was his remedy unless he chose to pay the note himself and sue the principal, Revisal, 2271. The intention thus expressed to "carry the note" was no part of the assignment by Winslow to plaintiff, but the statement of a benign purpose on the part of the assignee towards Spain for no "fixed and definite" period. The witness testified that Ruffin, for plaintiff, said "he would let me off until next fall, he reckoned. No distinct time was mentioned."
No error.
Cited: McInturff v. Gahagan,