First Peoples Savings & Loan Ass'n v. Cogdell

261 S.E.2d 259 (1980) 44 N.C. App. 511

FIRST PEOPLES SAVINGS & LOAN ASSOCIATION and American Mortgage Insurance Company
v.
Carl Cyndyn COGDELL, Martha Johnson Cogdell, James E. Cogdell and Rosa B. Cogdell.

No. 7916DC264.

Court of Appeals of North Carolina.

January 8, 1980.

Allen, Steed & Allen by Noah H. Huffstetler, III, Raleigh, for plaintiffs-appellants.

No counsel for defendants-appellees.

ARNOLD, Judge.

The first issue submitted to the jury was, "Were the obligations of Defendants James and Rosa Cogdell under the installment sales contract supported by consideration?" Plaintiffs contend that they were entitled to a directed verdict on this issue, and that the court's charge on the issue was incorrect.

The installment sales contract was signed by all four defendants, as follows:

Buyer Signs s/ Carl Cyndyn Cogdell (Seal) s/ Martha Johnson Cogdell Buyer Signs s/ James Eddie Cogdell (Seal) s/ Rosa B . . . Cogdell

Defendants James and Rosa Cogdell (defendants) aver by their third defense that there was no consideration for them to enter into any contract with the seller. Plaintiffs' Exhibit B, the certificate of title, is made out in the names of Carl and Martha Cogdell only, and defendants contend that they were not purchasers under the contract, but merely guarantors.

Assuming without deciding that defendants were guarantors only, we still do not find that consideration was lacking. "It is not necessary that the promissor receive consideration or something of value himself in order to provide the legal consideration sufficient to support a contract.. . . In a guaranty contract . . . [t]he promise is enforceable if a benefit to the principal debtor is shown or if detriment or inconvenience to the promisee is disclosed." Investment Properties v. Norburn, 281 N.C. 191, 196, 188 S.E.2d 342, 345 (1972). The facts here clearly show both a benefit to the alleged principal debtor and a detriment to the promisee, affording sufficient consideration for defendants' promise to pay.

Furthermore, consideration for the defendant James Cogdell's promise is imported by the fact that the contract was executed under seal. Mobil Oil Corp. v. Wolfe, 297 N.C. 36, 252 S.E.2d 809 (1979). (Whether Rosa Cogdell intended to adopt the seal would be a question for the jury. Id.)

Failure of consideration is an affirmative defense, G.S. 1A-1, Rule 8(c), upon which defendants bear the burden of proof. The defendants here did not meet this burden. Therefore a directed verdict in plaintiffs' favor against defendants on this issue would have been proper. Roberts v. Reynolds Memorial Park, 281 N.C. 48, 187 S.E.2d 721 (1972).

We need not reach plaintiffs' argument that the jury instruction was incorrect.

Plaintiffs were entitled to a directed verdict on the first issue. The cause is therefore remanded for entry of judgment accordingly.

Reversed and remanded.

CLARK and ERWIN, JJ., concur.