First Nat. Bank Of Oxford v. King

• Citation: 164 N.C. 303, 80 S.E. 251
• Case Date: December 10, 1913
• Court: United States State Supreme Court of North Carolina

80 S.E. 251
164 N.C. 303

FIRST NAT. BANK OF OXFORD
v.
KING et al.

Supreme Court of North Carolina.

Dec. 10, 1913.

Limitation of Actions (§ 155*)—Acknowledgment—New Promise or Part Payment. Where a debtor, to secure his note, left collaterals with a bank and constituted the cashier his agent, in case of default, to sell and apply the proceeds to the note, and promised to pay any deficiency, a sale and application of the proceeds by the cashier amounted to a voluntary payment by the debtor sufficient to interrupt the statute of limitations.

[Ed. Note.—For other cases, see Limitation of Actions, Cent. Dig. §§ 623-630; Dec. Dig. § 155.*]

Clark and Hoke, JJ., dissenting.

Appeal from Superior Court, Granville County; Connor, Judge.

Action by First National Bank of Oxford against Claude King and others. Judgment for plaintiff; defendants appeal. Affirmed.

Civil action upon these issues:

"(1) Did the defendants execute the note, as alleged, and make the payments down to April, 1907, as alleged? Answer: Yes.

"(2) Did the plaintiff sell the stock for fifteen hundred dollars, and apply the proceeds thereof on the note, as alleged in the pleadings, on February 25, 1913? Answer: Yes.

"(3) Is the plaintiff's cause of action barred by the statute of limitations? Answer: No.

"(4) Are the defendants indebted to the plaintiff, as alleged, if so, in what sum? Answer: $1,036.36, with interest on $1,005.58 from May 2, 1913."

The defendants excepted to the charge of the court upon the third issue, and appealed.

Jno. W. Hester and D. G. Brummitt, both of Oxford, for appellants.

Hicks & Stem, of Oxford, and T. T. Hicks, of Henderson, for appellee.

BROWN, J. The part of the charge excepted to is as follows: "Inasmuch as the note contains a provision authorizing the plaintiff bank, its president or cashier, to sell the stock mentioned in the note of July 18, 1906, and apply the proceeds of such sale to the note, the court holds and charges you that in making the sale of the 20 shares of stock of the King Buggy Company, mentioned in the note sued on, to E. H. Crenshaw on February 25, 1913, W. H. Hunt, cashier of plaintiff bank, was acting as the agent of defendants, and the application of the proceeds of such sale on said date by plaintiff bank to said note was such a voluntary payment as revived the debt and created a new promise or obligation upon the part of defendants to pay said note. Thereupon the court charges you, if you find the facts to be as testified to in the evidence, to answer the third issue, 'No.'"

The uncontradicted evidence proves that the defendants executed their obligation to plaintiff, of which the following is a copy: "$2,000.00. Oxford, N. C, July 18th, 1906. On September 1, 1906, after date for value received, we promise to pay to the First National Bank of Oxford, N. C, or order, two thousand dollars, negotiable and payable at said bank, with interest at the rate of six per cent, per annum after maturity, having deposited with said bank as collateral security for payment of this, or any other liability or liabilities of ours, to said bank, due or which may be hereafter contracted, the following property, viz.: Certificate No. 15, twenty shares 'King Buggy Co., ' stock attached as collateral. It is hereby understood and agreed that we are to pay seventy-five dollars per month on this note until paid in full, with such additional collaterals as may from time to time be required by the president or cashier of the First National Bank of Oxford, N. C, and which additional collaterals I hereby promise to give at anytime on demand, and if not so given when demanded, then this note to become due and payable at once, with full power and authority to said bank to sell, assign and deliver the whole, or any part thereof, or any substitutes therefor, or any additions thereto,

[80 S.E. 252]

at any brokers board, or at public or private sale, at the option of said bank, or its president or cashier, or its, or their or either of their assigns on the nonperformance of this promise, or the nonpayment of any of the liabilities above mentioned, or at any time or times thereafter, without advertisement, or notice, which are hereby expressly waived; and upon such sale, the holder hereof may purchase the whole or any part of such securities—discharged from any right of...