Bank v. Others

• Decision Date: 14 November 1887
• Citation: 3 S.E. 826,98 N.C. 67
• Court: North Carolina Supreme Court
• Parties: Bank v. Beidgeks and others.

3 S.E. 826

98 N.C. 67

Bank

v.Beidgeks and others.

Supreme Court of North Carolina.

November 14, 1887.

1. Negotiable Instruments—Consideration—Forbearance.

The defendant joined with her co-defendants in a note given in renewal of a prior note long past due, but upon which the latter only were liable. Held, that the forbearance to enforce the payment of the prior debt is sufficient consideration to fix the liability of the defendant on the renewal note.

2. Same—Renewal of Note—Liability.

In an action against a widow on a promissory note, signed by her after she became a widow, as a renewal of a former note made by her during coverture, the fact that she was not liable on the note made during coverture does not affect her liability on the new note.

Appeal from superior court, New Hanover county; Connek, Judge.

Geo. Davis, for plaintiff. T. N. Hill and Thos. 8. Strange, for defendant.

Smith, C. J. The complaint, in separate counts, is for the non-payment of two promissory notes, each in the sum of $3,333.91, made on the same day, May 8, 1885, and maturing, respectively, on the first day of December and January following, executed by the defendants Mary E. Bridgers and John L. Bridgers to Robert R. Bridgers, and indorsed, before becoming due, to the plaintiff. On the notes partial specified payments are admitted to have been made, and the action is to recover the residue.

The defendant Mary E., in her answer, admits that she signed both notes, and that they came to the plaintiff by the payee for value, but denies her lia bility upon either, and in support of her defense alleges as follows: That in the year 1867 she intermarried with one John L. Bridgers, who died in January, 1884; that, while the wife of the deceased, they and the defendant John L. Bridgers, on February 8, 1883, made two other promissory notes to the same payee, by whom they were indorsed to and became the property of the plaintiff, —one for $3,500, due November 20th; the other for $4,000, due December 20th of the same year; that certain payments were made on them, and the notes described in the complaint were in renewal, and for the balance due on them at that time, and without further consideration as to her; and that by reason of her coverture when she signed the first notes, and the absence of any consideration for the renewal, she has incurred no obligation in the premises.

The other defendants answered and admitted the facts stated in the complaint; averring however, each of them, that he was a surety only, —the indorser, that he was a surety for both defendants; and the said John L,., that he was a surety for the ferne defendant.

Thereupon the following issues were submitted to the jury: "Was the defendant Mary E. Bridgers married to John L. Bridgers, Sr., in the year 1867?" To which the jury responded "Yes." "(2) Did the said John L. Bridgers die during the month of January, 1884?" To which the jury responded "Yes." "(3) Did the said Mary E. Bridgers, with her husband and the other defendants, execute the notes dated February 8, 1883, and referred to in the answer?" To which the jury responded "Yes." "(4) Were the notes set out in the complaint given by the said Mary E. Bridgers and the other defendants in renewal of the said notes of February 8, 1883?" To which the jury responded " Yes." " (5) Was the defendant Robt. B. Bridgers a surety of the other defendants?" To which the jury responded "Yes." "(6) Was the defendant John L. Bridgers as surety to the defendant Mary E. Bridgers?" To which the jury responded "Yes." "(7) Was the money for which the original notes were given borrowed for the benefit of the separate estate of the defendant Mary E. Bridgers?" To which the jury responded "No." "(8) Did the trustee Maricus J. Battle assent to the execution of said note?" To which the jury responded "No."

The defendant Mary E. Bridgers moved for judgment that she go without day, and for her costs. The motion was refused and the defendant excepted. Whereupon the plaintiff, upon the verdict and facts set forth in the pleadings, moved for judgment against all the defendants, which was rendered, and the defendant Mary E. Bridgers excepted, and thereupon appealed to this court.

There can be no question upon the findings by the jury that the appellant incurred, in signing the note with her husband, no obligation which could have been legally enforced against her, and it is argued that she is not bound by that given in renewal, because there was no existing liability, and no further consideration to sustain the contract. It is to be observed that the notes now sued on differ from the two former ones, in that the principal and deceased debtor is not a party to them, and in the extension of the time of payment for more than nine months, so that the new and superseding contracts have a consideration more than a mere naked promise to pay a subsisting debt, which, as such, would be inoperative in creating a new obligation. The taking of the new security thus suspends the remedy upon the old, at least, as to those who unite in executing it.

"There is no doubt that a negotiable bill or note, " says Mr. Daniel, "given for or on account of a contemporaneous or pre-existing debt, and whether...