Bank v. Toxey

• Decision Date: 23 September 1936
• Docket Number: No. 27.,27.
• Citation: 210 N.C. 470,187 S.E. 553
• Court: North Carolina Supreme Court
• Parties: FIRST & CITIZENS NAT. BANK. v. TOXEY et al.

210 N.C. 470

187 S.E. 553

FIRST & CITIZENS NAT. BANK.

v.TOXEY et al.

No. 27.

Supreme Court of North Carolina.

Sept. 23, 1936.

Appeal from Superior Court, Pasquotank County; Small, Judge.

Action by the First & Citizens National Bank against Sudie Toxey, J. H. Aydlett, and others. From a judgment in favor of plaintiff, J. H. Aydlett appeals.

No error.

This is an action to recover on a note for $500, payable to the plaintiff. Thenote was due on September 26, 1932. The action was begun on September 9, 1935.

It is alleged in the complaint that the note sued on was executed by the defendants Sudie Toxey and W. C. Lloyd Toxey as makers, and by the defendants Sarah J. Toxey and J. H. Aydlett as indorsers.

Judgment by default for want of answers was rendered by the clerk of the superior court of Pasquotank county, in favor of the plaintiff and against the defendants Sudie Toxey, W. C. Lloyd Toxey, and Sarah J. Toxey.

The defendant J. H. Aydlett filed an answer in which he denied that he indorsed the note sued on, and alleged that he did not write, or authorize any one to write, his name on the back of the note sued on.

At the trial the issues were answered by the jury as follows:

"1. Did the defendant J. H. Aydlett endorse the note sued on? Answer, Yes.

"2. In what amount, if any, is the defendant J. H. Aydlett indebted to the plaintiff on the note sued on, dated 26 August, 1932? Answer, $500.00, with interest from 26 September, 1932."

From judgment in accordance with the verdict, the defendant J. H. Aydlett appealed to the Supreme Court, assigning as errors rulings of the trial court with respect to evidence.

M. B. Simpson, of Elizabeth City, for appellant.

John H. Hall, of Elizabeth City, for appellee.

PER CURIAM.

At the trial, evidence was offered by the plaintiff tending to show that the note sued on was tendered to and accepted by the plaintiff in renewal of a note payable to the plaintiff, which was executed by the defendants Sudie Toxey and W. C. Lloyd Toxey as makers, and by the defendants Sarah J. Toxey and J. H. Aydlett as indorsers. The defendants' objection to this evidence was overruled. The evidence was competent as tending to show that the defendant had indorsed the note sued on, as the evidence for the plaintiff tended to show. The decision in American Bank & Trust Co. v. Harris, 180 N.C. 238, 104 S.E. 458, is not applicable in this appeal.

Evidence was offered by the defendant tending to show statements made by officers and employees of the...