Howell v. Roberson

• Citation: 197 N.C. 672,150 S.E. 32
• Decision Date: 23 October 1929
• Docket Number: (No. 332.)
• Parties: HOWELL . v. ROBERSON et al.
• Court: United States State Supreme Court of North Carolina

150 S.E. 32

(197 N.C. 672)

HOWELL .

v.ROBERSON et al.

(No. 332.)

Supreme Court of North Carolina.

Oct. 23, 1929.

Appeal from Superior Court, Orange County; Cranmer, Judge.

Action by E. V. Howell, agent, against W. S. Roberson and others. Judgment for plaintiff, and defendant L. D. Pendergraft appeals. Affirmed.

R. O. Everett, of Durham, for appellant. Gattis & Gattis, of Hillsboro, for appellee Lloyd.

CLARKSON, J. The plaintiff, E. V. Howell, agent, instituted this action against the defendants to recover upon a note executed by the defendants in his favor, as follows: "$1500.00. Chapel Hill, N. C, 12/13/1926.

'Six months after date ——promise to

pay to E. V. Howell, agent, or order, without offset, Fifteen Hundred Dollars, negotiable at The Bank of Chapel Hill, N. C.

"For value received, and we, the makers and endorsers hereby waive our benefit to the Homestead Exemption as to this debt, and agree to continue and remain bound for the payment of this note and all interest thereon, notwithstanding any extension of time granted to the principal, and also waive presentment, demand, protest and notice of same, and agree to pay ten per centum attorney's fees if collected by law.

"No. 1500. W. S. Roberson

'Due 6/13/27 W. A. Lloyd

"P. O. L. D. Pendergraft."

It may be noted that the waiver of homestead in the manner set forth in the above note is contrary to the law in this jurisdiction and also the allowance of attorney's fees.

The contention of Pendergraft was to the effect that he was liable to W. S. Roberson but secondarily to W. A. Lloyd. The. contention of Lloyd was to the effect that Pendergraft and himself "signed the instrument sued on as makers thereof for the accommodation of the defendant, W. S. Roberson, and it is alleged that the defendant, Pendergraft. and this defendant are sureties upon the said note and are jointly and severally liable thereon."

It will be seen from the language of the note "any extension of time granted to the principal" would imply that the other makers were sureties.

Pendergraft contends that he is an accommodation indorser and secondarily liable to his codefendant Lloyd in the order in which their names appear on the face of the note, there being no evidence to vary the priority. We cannot so hold.

Under the law in this jurisdiction, all three who signed the note were joint makers and may be so held by the payee or holder of the note. C. S. §§ 2977, 3041. As among themselves, they may ordinarily show by parol their respective liability to each other on the note. Coprincipals and cosureties are presumed to assume equal liability, but this presumption may be rebutted by parol evidence. Smith v. Carr, 128 N. C. 150, 38 S. E. 732; Carr v. Smith, 129 N. C. 232, 39 S. E. 831; Lancaster v. Stanfleld, 191 N. C. at...