Fid. Trust Co v. Ellen

• Decision Date: 10 September 1913
• Citation: Fid. Trust Co v. Ellen, 79 S.E. 263, 163 N. C. 45 (N.C. 1913)
• Parties: FIDELITY TRUST CO. v. ELLEN et al.
• Court: North Carolina Supreme Court

79 S.E. 263

(163 N. C. 45)

FIDELITY TRUST CO.

v.ELLEN et al.

Supreme Court of North Carolina.

Sept. 10, 1913.

Appeal from Superior Court, Nash County; Justice, Judge.

Action by the Fidelity Trust Company against C. F. Ellen and others. From a judgment for defendants, plaintiff appeals. Affirmed.

J. B. Ramsey and E. B. Grantham, both of Rocky Mount, for appellant.

Bunn & Spruill, T. T. Thorne, and Jacob Battle, all of Rocky Mount, for appellees.

CLARK, C. J. This is one of the numerous actions upon notes given to McLaughlin Bros. for the purchase of an "imported French coach horse, " of which so many others are to be found in the reports of this state and also in those of other states. Attention is called to this in Winter v. Nobs, 19 Idaho, at page 28. Only one issue was submitted, "Are the defendants indebted to the plaintiff, and if so, in what amount?" The plaintiff did not tender any issues, nor except to this issue, nor for failure to submit other issues.

There were exceptions to evidence, but they do not require consideration, and indeed were not argued here. The plaintiff requested the court to charge that there was no evidence that the note was procured by fraud; and, if there was any, none that the plaintiff had notice of such fraud. These were properly refused upon the evidence.

The plaintiff further requested the court to charge that, the action being upon a negotiable instrument he is presumed to be the holder thereof in due course, without notice of any equities or defenses of the defendants. This the court properly refused to give. There was allegation and proof tending to show that the execution of the note was procured by fraud, and hence the burden was thrown upon the plaintiff to show that it was a holder in due course; the credibility of the evidence being for the jury. Mfg. v. Summers, 143 N. C. 102, 55 S. E. 522; Bank v. Fountain, 148 N. C. 590, 62 S. E. 738; Park v. Exum, 156 N. C. 231, 72 S. E. 309; Bank v. Walser, 162 N. C. 63, 77 S. E. 1006; Pell's Revisal, § 2208.

The plaintiff further requested the court to charge the jury: "If you find the facts to be as testified to by all the witnesses, you will answer the issue as to the plaintiff being a bona fide holder for value and without notice in favor of the plaintiff." This instruction the court could not give upon the evidence. The court, however, did instruct the jury as follows: "The court in-structs you, gentlemen, that if you believe all the evidence, and find the facts to be...