Barber v. W.M. Absher Co.

• Decision Date: 22 May 1918
• Docket Number: 514.
• Citation: 96 S.E. 43,175 N.C. 602
• Parties: BARBER v. W. M. ABSHER CO. ET AL.
• Court: North Carolina Supreme Court

96 S.E. 43

175 N.C. 602

BARBER v. W. M. ABSHER CO. ET AL.

No. 514.

Supreme Court of North Carolina

May 22, 1918

Appeal from Superior Court, Wilkes County; Carter, Judge.

Action by Mrs. Mariana W. Barber against the W. M. Absher Company and others. From a judgment for defendants, plaintiff appeals. Affirmed.

That a maker of a note makes a payment thereon does not toll the statute of limitations as far as an indorser is concerned since to have such effect payment must be made by one in the same class as the person seeking to be relieved.

This is an action on a note executed by the defendant the W. M Absher Company, a corporation, and indorsed by the defendants F. D. Forrester and J. H. Johnson. The Absher Company makes no defense. The defendants Forrester and Johnson rely on the defenses of failure to give them notice of dishonor and the statute of limitations. A jury trial was waived and his honor found the following facts:

"(1) That W. M. Absher Company on April 21, 1910, executed the following note to M. W. Barber, to wit:

'$800.00. One year after date, with interest from date, we promise to pay to M. W. Barber, or order, eight hundred dollars, for value received, interest due and payable semiannually.

[Signed] The W. M. Absher Co. [ Seal.]

H. O. Absher, Pr. & Treas.'

(2) That defendants F. D. Forrester and J. H. Johnson indorsed their names in blank on the back of said note before its delivery to M. W. Barber.

(3) That there was no notice of dishonor given to J. H. Johnson and F. D. Forrester.

(4) That the summons in this action was issued and delivered to the sheriff of Wilkes county on July 27, 1915.

(5) That more than three years elapsed after the maturity of said note prior to the beginning of this action.

(6) That the maker of the above note made the following payments on the dates named as follows: $48 interest to April 21, 1911; May, 1912, or, $48; May, 1913, or, $48; May, 1914, or. $48."

On July 20, 1912, the Absher Company executed a mortgage to the defendants Forrester and Johnson, by which was conveyed a tract of land, in which there is the following provision:

"This mortgage is given to secure the parties of the second part for indorsing a note of $1,000 executed on the 20th day of July, 1912, by the W. M. Absher Company, payable one year after date to J. H. Carrigan, and is intended to, and does, cover any indorsement on renewals or substitutes in full or in part and any and all other indorsements now made or may hereafter be made by all or any one of the above-named parties of the second part."

Judgment was rendered in favor of the defendants, and the plaintiff appealed.

Finley & Hendrem, of Wilkesboro, and Squires & Whisnant, of Lenoir, for appellant.

Hayes & Jones, of North Wilkesboro, for appellees.

ALLEN J.

The findings of fact by the judge, a jury trial being waived, are as conclusive as the verdict of a jury (Matthews v. Fry, 143 N.C. 384, 55 S.E. 787), and we must therefore deal with the legal questions presented by the appeal, accepting as being established that the defendants Forrester and Johnson signed the note sued on as indorsers; that no notice of dishonor has been given to either of them; that more than three years elapsed after the maturity of the note before this action was commenced; that the payments on the note were made by the maker; and upon these facts it is clear that these defendants are discharged from liability on account of failure to give notice of dishonor, and that the cause of action is barred as to them by the statute of limitations, unless the acceptance of the mortgage of July 20, 1912, changes their relationship to the debt.

The statute (Rev. § 2239) provides that "notice of dishonor must be given to the drawer and to each indorser, and any drawer or indorser to whom such notice is not given is discharged," and, following the statute, it was held in Perry v. Taylor, 148 N.C. 362, 62 S.E. 423, that failure to give notice of dishonor discharged the indorser from further liability. It is also settled that a payment, to have the effect of repelling the statute of limitations, must be made by one in the same class, and that a payment by the maker does not continue the right of action against the indorser.

"To give this effect to the act of one, there must be a community of interest and a common obligation among them. They must be obligors in a bond, makers of a promissory note, drawers or acceptors of a bill, or joint indorsers of either. An admission, direct or involved in the act of payment by one of either class, under the same measure of responsibility becomes the legal act of all that class, but does not revive the liability of others of a different class. Thus if one of several joint acceptors promises to pay as directed in the statute, or makes a payment, his associate acceptors are bound by what he...