First National Bank of Eastern North Carolina v. Black

BROCK, Judge.

The crux of defendants’ appeal is the interpretation of the agreement allegedly signed by defendants. It is defendants’ contention that the terms of the agreement only call upon them to, pay such portion of the loan as Barefoot is unable to pay at maturity. They contend, therefore, that the burden was upon plaintiff to prove what portion of the loan Barefoot was unable to pay on 1 November 1967; and upon plaintiff’s failure to offer evidence on this question, defendants were entitled to a judgment of dismissal at the close of plaintiff’s evidence.

The only evidence of Barefoot’s ability to pay the indebtedness is plaintiff’s evidence that at sometime after 17 April 1969 execution was issued and returned unsatisfied; this was at least seventeen months after maturity of the note. The record on appeal is absolutely devoid of evidence of Barefoot’s ability to pay on 1 November 1967, the date of maturity. In our opinion defendants’ motion to dismiss at the close of plaintiff’s1 evidence should have been allowed.

It is interesting to note that during oral argument counsel for plaintiff and counsel for defendants stated that an official of the bank drafted the guaranty agreement.

The judgment appealed from is reversed and this cause is remanded to the District Court of Harnett County for entry of judgment of dismissal under G.S. 1A-1, Rule 41(b).

Reversed and remanded.

Judges Morris and Graham concur.