Beaman v. Ward

• Decision Date: 10 March 1903
• Citation: 43 S.E. 545,132 N. C. 68
• Parties: BEAMAN et al. v. WARD.
• Court: North Carolina Supreme Court

43 S.E. 545

132 N. C. 68

BEAMAN et al.

v.WARD.

Supreme Court of North Carolina.

March 10, 1903.

NONNEGOTIABLE NOTE—POSSESSION—OWNERSHIP—PRESUMPTION—EVIDENCE—OBJECTION—FRAUD—PLEADING.

1. When an objection to evidence is not made until after it has been received, an exception to an order overruling the objection will not be sustained.

2. Where, in an action by an indorsee of a nonnegotiable note, he produces the note, with proper indorsements to him, at the trial, he will be presumed to be the owner thereof.

3. Evidence, in an action by an indorsee to recover on a nonnegotiable note, examined, and held that the defense of fraud and want of consideration was not sustained.

4. A pleader cannot raise the issue of fraud by merely alleging fraud, but must allege the facts constituting the fraud.

Appeal from superior court, Sampson county; Timberlake, Judge.

Action by W. J. Beaman and others against Clifton Ward. From a judgment in favor of plaintiffs, defendant appeals. Affirmed.

F. R. Cooper and Faison & Grady, for appellant.

Geo. E. Butler and John D. Kerr, for appellees.

WALKER, J. This action was brought to recover the amount of a note made by the defendant to B. P. Robinson, and having on its face the word "Nonnegotiable." It appeared to have been indorsed by Robinson to Walter McDraughan, and by the latter to the plaintiff, the last indorsement having been attested by H. I. Lee. The defendant admitted the execution of the note, but denied the assignment or indorsement of it to the plaintiff, and in order to prove his ownership of the note the plaintiff, who had it in his possession, produced it at the trial, and then introduced one J. A. Beaman, who testified that he was present and saw Robinson transfer the note to McDraughan, and, also, that he saw McDraughan execute the transfer to the plaintiff, and saw H. I. Lee witness it

It seems from the case that the defendant's objection to this evidence was not made until after the witness had testified to the facts in regard to the indorsement, and we must hold that this objection was not interposed in apt time, because the case does not show that it was, and the court below may have based its ruling upon the ground that the objection came too late. For this reason, there is no error in the ruling of the court upon the defendant's objection to this evidence. McRae v. Malloy, 93 N. C. 154; Wiggins v. Guthrie, 101 N. C. G61, 7 S. E. 761; Blake v. Broughton, 107 N. C. 220, 12 S. E. 127.

Counsel must make known their objection to evidence in apt time, and it must appear from the case on appeal that this was done; otherwise, the exception to the overruling of the objection will not be sustained in this court, as some presumption is made in favor of the correctness of the ruling of the lower court, and we must therefore infer that the objection came too late, and that the court, in the exercise of its discretion, refused to entertain it.

But if the objection had been made in apt time, it seems that, under the facts and circumstances of this case, the ruling of the court was correct, as there was a presumption of ownership of the note by the plaintiff (Jackson v. Love, 82 N. C. 405, 33 Am. Rep. 685), and this was not rebutted in any way. In the case just cited, the note was payable to W. W. Stringfield, and the action upon it was brought by the plaintiff, who was not a party to the note. The court held that he could recover if he produced the note at the trial, upon the principle that, "as men generally own the personal property they possess, the possession of the property is presumptive proof of ownership"—citing 1 Greenleaf, Ev. sec. 34.

It seems that it was not...