24 S.E. 357 | N.C. | 1896
The plaintiff declared on a note, under seal, executed by the defendants John D. Walters and Alex. Sutton to the defendants Shade Wooten Co. and endorsed, in blank, by Shade Wooten Co. to plaintiff's intestate, Thomas Sutton. Said note is in the following words and figures:
"$500. LAGRANGE, N.C. 13 April, 1892. (497)
"Eight months after date, I promise to pay to the order of Shade Wooten Co. $500, at 8 per cent interest from date at their office. Value received.
"JOHN D. WALTERS. [Seal] "ALEX. SUTTON. [Seal]"
On the back of this note was endorsed, "Shade Wooten Co.," without date. There were also on the note the following endorsed payments, admitted by the defendant John D. Walters to be in his own handwriting: "Paid on the within note $26.65, 13 December, 1892. Received on the within note $40 interest, up to 1 January, 1894." No date.
The defendant John D. Walters made no defense to the action.
The defendant Alex. Sutton, in his answer to plaintiff's complaint, alleged that defendant Walters executed said note as principal and he executed it as surety, and, on information and belief, at the time said note was endorsed by Shade Wooten Co. to the plaintiff's intestate, Thomas Sutton, said Sutton had notice of such suretyship; and also, on information and belief, further alleged that plaintiff's intestate, Thomas Sutton, agreed with defendant John D. Walters, for a valuable consideration, to extend the time of the payment of said note beyond the date of its maturity, without the knowledge or consent of said Alex. Sutton.
The defendants Shade Wooten Co., in their answer, after admitting their endorsement of said note to Thomas Sutton, the plaintiff's intestate, allege an agreement between John D. Walters and Thomas Sutton to extend the time of payment of said note, and that said defendant Walters paid said Thomas Sutton several sums of money for that purpose, and that said defendants, Shade (498) Wooten Co., had given said Thomas Sutton notice to collect said note when it fell due.
The plaintiff offered said note in evidence and stopped.
The defendant Alex. Sutton put on as a witness the defendant John D. Walters, who said: "I am the principal to the note. Alex. Sutton is surety. Shade Wooten Co. knew Alex. Sutton was surety." *306
The witness was then asked: "Did Thomas Sutton, deceased, know it?" Objected to by plaintiff. Objection overruled, and plaintiff excepted. Witness answered: "Yes; he knew it before he got the note. Mr. Sutton lived a year or two afterwards." Objection; overruled. Exception. "Did he extend the time of payment of note?" "Yes." Objection; overruled. Exception by plaintiff. "I put the credits on the note after its maturity. The last credit was not dated; was made after maturity and after the first endorsement." Objection; overruled. Exception by plaintiff. "What was your financial condition at the time of the maturity of the note?" "I was solvent and principal; was solvent at the time of the credit; am insolvent now." Question and answer objected to; overruled. Exception by plaintiff.
John D. Walters was recalled, and stated: "There was an agreement between me and Thomas Sutton, deceased, that he would extend the time when each payment was made. My recollection is the last payment was made a little in advance. The credit is not dated. There was no contract except the agreement to extend the payment. I owed him no other debt. I think the interest was paid in November." All the evidence of this witness was objected to at the proper time. Objection overruled, and plaintiff excepted.
(499) Here the defendants closed their case.
The plaintiff announced that he had no further evidence. The plaintiff then made the point that the whole of the defendants' evidence failed to show a valid contract, in that they had failed to show any time of forbearance on the part of the plaintiff.
His Honor then, under protest of the plaintiff, permitted the defendants to again recall the defendant John D. Walters, who said: "He (Sutton) agreed to extend the time till next fall." On cross-examination witness said: "He agreed to extend the time one year each time." Objection by the plaintiff; overruled. Plaintiff excepted.
The issues submitted appear in the opinion of the Court. There was a verdict and judgment in favor of the defendants Alexander Sutton and Shade Wooten Co. Plaintiff appealed.
The exceptions, based upon the incompetency of John D. Walters as a witness, under section 590 of The Code, are without merit. That section was analyzed and discussed in Bunn v. Todd,
The permission of the court to recall a witness after the evidence closed was a matter of discretion in the judge. Olive v. Olive,
His Honor submitted to the jury the following issues: 1. "Did Alexander Sutton sign the note to Thomas Sutton as surety?" Answer: "Yes." 2. "Did Thomas Sutton agree to extend the time of the payment of the note without the knowledge or consent of Alexander Sutton and Shade Wooten?" Answer: "Yes."
The issue should have embraced the further query, whether such suretyship was known to the plaintiff when (501) he gave the extension of time, but the defendant neither tendered such issue nor excepted to the failure to do so. Had the defendant done so, the court would have had an opportunity to correct what was doubtless an inadvertence with both parties, as well as the court, since from the evidence and the charge it is clear that all parties understood *308 that this question was embraced in the second issue; and, indeed, the fact that the suretyship was known to the plaintiff was alleged in the answer and was in evidence for defendant, and was not contradicted by any evidence for the plaintiff. Had the other issue been submitted upon the evidence, if believed, the jury must have found it for the defendant. The case has gone off upon the very issues of fact and questions of law in actual dispute between the two parties.
The judge's charge, which was as follows, drew the attention of the jury to this matter of the knowledge of the suretyship by the plaintiff, even if there had been any conflict of evidence as to the fact. His Honor, in charging the jury, among other things, said: "If you find that Thomas Sutton received interest on the note from John D. Walters before it was due, and that in consideration of the payment of interest in advance by Walters the said Sutton agreed to extend the time of payment without the knowledge or consent of Alexander Sutton and Shade Wooten Co.; and if you find from the evidence that Thomas Sutton, knowing that Alexander Sutton was surety, agreed with Walters to forbear and extend the time of payment in consideration that Walters would pay the interest on the note before (502) due and in advance, and if the interest was paid as agreed, and said agreement being made without the assent of Alexander Sutton and Shade Wooten Co., then the said Sutton and Wooten Co. would be exonerated from all liability, either as sureties or endorsers, by reason of such extension of time." The charge is correct. Chemical Co. v.Pegram,
No Error.
Cited: Lyon v. Pender, ante, 151; S. v. Harris,
(503)
