24 S.E. 9 | N.C. | 1896
There was judgment for the defendant Bailey (his codefendant Parker making no defense), and plaintiff appealed.
The facts appear in the opinion of Associate Justice Furches. This is an action of debt, brought on the following paper-writing: "On the first day of November next we, or either of us, promise to pay A. B. Wester the sum of $100, with 8 per cent interest from date. Given under our hands and seals, this 12 April, 1892." (Signed and sealed by J. T. Harper and S. H. Bailey.) At the time this paper was drawn and signed by Harper and Bailey there was a blank left for the name of the payee, as it was not known at that time from whom the parties would get the money. The note, in this condition, was placed in the hands of defendant Harper to negotiate and get the money, and he went to the plaintiff, who agreed to let him have the money, and, by the direction of Harper, the plaintiff filled up the blank with his name as payee, and let Harper have the hundred dollars. There were no written pleadings, the case (194) having been commenced before a justice of the peace, but the defendant pleaded and relied on the "general issue." The plaintiff, besides proving the signatures to the note to be those of the defendants Harper and Bailey, introduced one Duke, who testified that, "acting for the plaintiff, he took the note to Bailey about the last of September, 1892, and Bailey said he signed the note and it was all right; he would see Harper and make him pay it, and asked witness if he supposed Wester would take back the horse," etc.
We do not feel called upon to consider the views presented by plaintiff's counsel as to whether the action may be maintained under The Code practice, as construed in Fulps v. Mock,
But it seems to us there is another point presented by the case on appeal that is decisive, and that is the acknowledgement by Bailey, some time in the latter part of September, 1892. It was then complete. The payee's name was in it then, and this acknowledgement made it his bond then, if it had not been so before.
The only ground presented by defendant Bailey (Harper did not appeal) is that it was without consideration — a nudum pactum. But this defense cannot benefit the defendant, because, when he *120
acknowledged it, it became his bond — being under seal — and needed no consideration to support it. "The law conclusively presumes that it was made upon good and sufficient consideration." Smith on Contracts, (195) p. 14; Angier v. Howard,
This point was incidentally presented in Isenhour v. Isenhour,
But, as the Court held that this was not a transaction or communication between the defendant and intestate, it did not fall within the proviso to section 590, and the point was not directly passed upon by the Court. But from the treatment given it, it appears to us the inference is that, if it had been proved that he afterwards acknowledged it, that would have made it his bond. We must therefore hold that the acknowledgment by Bailey in September, 1892, made the paper sued on his bond, and it needed no consideration to support it. There is
Error.
Cited: Moose v. Crowell,
(196)
