Lee v. . Chamblee , 223 N.C. 146 ( 1943 )

Civil action to recover on promissory note.

Plaintiff alleges and offered evidence tending to show that she is the owner and in possession of a $5,000.00 promissory note, dated 30 November, 1931, due and payable to The Commercial National Bank, or order, thirty days thereafter, ostensibly under seal and signed by C. H. Chamblee and the defendant, M. W. Chamblee, apparently as joint promisors.

The defendant alleges that he signed the note in suit without any consideration as to him and solely "as an accommodation surety," all to the knowledge of the agents of the payee at the time of its execution; and further, that there was no adoption of the word "Seal" set opposite the name of the maker, C. H. Chamblee, and the defendant who signed only as surety. The note contains no recital of a seal. The defendant pleads the three-year statute of limitations. C. S., 441. This action was instituted 29 December, 1941.

From judgment of nonsuit entered at the close of plaintiff's evidence, she appeals, assigning errors. The plaintiff rested her case upon offering the note, which appears to be under seal, with the defendant and another as joint makers or joint obligors. This was sufficient to defeat the motion for nonsuit. Allsbrookv. Walston, 212 N.C. 225, 193 S.E. 151, and cases cited.

True, the plea of the statute of limitations cast upon the plaintiff the burden of showing that her suit was commenced within the requisite time from the accrual of the cause of action, or that otherwise, it was not barred. Drinkwater v. Tel. Co., 204 N.C. 224, 168 S.E. 410; Savage v.Currin, 207 N.C. 222, 176 S.E. 569. The plaintiff offered in evidence a note apparently executed by the defendant and another as joint obligors, with the word "Seal" in brackets opposite the name of each ostensible maker. Nothing else appearing, this would repel the three-year statute of limitations, C. S., 441, as sealed instruments against the principals thereto are not barred until the lapse of ten years. C. S., 437; Currin v.Currin, 219 N.C. 815, 15 S.E.2d 279.

It is permissible to show by evidence aliunde that one, ostensibly a joint promisor or obligor, is in fact a surety. Flippen v. Lindsey,221 N.C. 30, 18 S.E.2d 824; Ins. Co. v. Morehead, 209 N.C. 174,183 S.E. 606; Davis v. Alexander, 207 N.C. 417, 177 S.E. 417. The three-year statute of limitations, C.S., 441, is applicable to sureties on sealed instruments as well as on instruments not under seal. Furr v. Trull,205 N.C. 417, 171 S.E. 641; Redmond v. Pippen, 113 N.C. 90,18 S.E. 50; Welfare v. Thompson, 83 N.C. 276. See Trust Co. v. Clifton,203 N.C. 483, 166 S.E. 334; Currin v. Currin, supra.

However, in the instant case, we are dealing with a nonsuit entered at the close of plaintiff's evidence. Considered in its most favorable light, it is sufficient to carry the case to the jury.

On the further hearing, the defendant will have an opportunity to offer evidence in support of his defense.

Reversed.