DocketNumber： 8311SC1166
Citation Numbers： 321 S.E.2d 545, 71 N.C. App. 209, 39 U.C.C. Rep. Serv. (West) 1359, 1984 N.C. App. LEXIS 3798
Judges： Phillips, Hedrick, Becton
Filed Date： 11/6/1984
Status： Precedential
Modified Date： 11/11/2024
Court of Appeals of North Carolina.
*546 Pope, Tilghman & Tart by Patrick H. Pope and Ann C. Taylor, and Lytch, Rizzo & Thompson by Benjamin N. Thompson, Dunn, for plaintiff-appellee.
Clifton & Singer by Benjamin F. Clifton, Jr. and W. Robert Denning, III, Raleigh, for defendant-appellant.
PHILLIPS, Judge.
If the note involved in this case is a negotiable instrument, governed by the Uniform Commercial Code, the order of summary judgment was correctly entered and the defendant's appeal is without merit. This is because execution, demand and nonpayment are admitted and the only defense raised, that the note was for a pre-existing debt and without consideration, has been rendered nugatory by G.S. 25-3-408. This statute, in pertinent part, provides as follows:
Want or failure of consideration is a defense as against any person not having the rights of a holder in due course (§ 25-3-305), except that no consideration is necessary for an instrument or obligation thereon given in payment of or as security for an antecedent obligation of any kind.
Defendant contends that this statutory provision does not apply to this case, because she did not owe the pre-existing debt, Benson Agri Supply did, and signed the note only as an accommodation. But the statute contains no such exception, and we see no basis for inserting one by interpretation. The statute is not ambiguous. Even though accommodation makers and obligors alike in great numbers sign instruments given in payment of or as security for antecedent obligations of various kinds, the statute states without limitation or reservation that consideration is not required for such instruments. It seems obvious to us, therefore, and we so hold, that both the intent and effect of this enactment was to deprive all signers of such instruments of the common law defense of no consideration that defendant now relies upon. Nevertheless, defendant's position is not entirely without judicial support. In Capital *547 City Bank v. Baker, 59 Tenn.Ct.App. 477, 442 S.W.2d 259 (1969), which involved circumstances similar to those recorded here, the Tennessee Court of Appeals held that that state's identical enactment applies only to obligors and that the accommodation co-maker's plea of no consideration was sound. But, so far as our research discloses, all other courts that have considered this question have construed the provision as we do; decisions so holding include Newman Grove Creamery Co. v. Deaver, 208 Neb. 178, 302 N.W.2d 697 (1981); First National Bank of Elgin v. Achilli, 14 Ill.App.3d 1, 301 N.E.2d 739 (1973); Musulin v. Woodtek, Inc., 260 Or. 576, 491 P.2d 1173 (1971); and the several others cited therein.
The defendant further contends, however, that the note involved is not governed by the Uniform Commercial Code because it is not a negotiable instrument within the terms of G.S. 25-3-104. In pertinent part, this statute provides:
(1) Any writing to be a negotiable instrument within this article must
(a) be signed by the maker or drawer; and
(b) contain an unconditional promise or order to pay a sum certain in money and no other promise, order, obligation or power given by the maker or drawer except as authorized by this article; and
(c) be payable on demand or at a definite time; and
(d) be payable to order or bearer.
As a writing signed by the several makers that is payable to the holder on demand, the note clearly meets the requirements of subparagraphs (a), (c) and (d) above, and defendant does not contend otherwise. Defendant does contend, however, that the note does not contain the unconditional promise to pay required by subparagraph (b) because of the two deeds of trust and security agreement that are incorporated into the note by reference. Certainly, as defendant argues and the statute provides, a promise is not unconditional if the instrument containing it states that it is subject to or governed by any other agreement or writing. G.S. 25-3-105(2)(a). But referring to a mortgage or other collateral does not impair negotiability. G.S. 25-3-105(1)(e); G.S. 25-3-112(1)(b). Nor, in our opinion, does incorporating into a note the liens that secure its payment, as was done here. The deeds of trust and security agreement given to secure the debt or promise to pay could not have rendered defendant's promise to pay uncertain or conditional. The decision most relied upon by defendant, Booker v. Everhart, 294 N.C. 146, 240 S.E.2d 360 (1978), is not in point. In that case the note lost its negotiability because the instruments incorporated into it were a deed of separation and property settlement agreement, which from their nature could contain offsetting obligations that would eliminate or reduce the obligation to pay the note as promised. But mere liens securing payment of a debt cannot affect the obligation to pay it.
Affirmed.
HEDRICK and BECTON, JJ., concur.