Hunt v. Eure

• Decision Date: 10 December 1924
• Docket Number: 391.
• Parties: HUNT v. EURE ET AL.
• Court: North Carolina Supreme Court

125 S.E. 484

188 N.C. 716

HUNT v. EURE ET AL.

No. 391.

Supreme Court of North Carolina

December 10, 1924

Appeal from Superior Court, Guilford County; Bryson, Judge.

Action by J. Marvin Hunt against N. L. Eure and others. Judgment for plaintiff, and defendants appeal. New trial.

Plaintiff brought suit on the following note:

"$2,000. Greensboro, N. C., July 20, 1920.

Sixty days from date we and each of us jointly and severally promise to pay to J. Marvin Hunt the full sum of two thousand dollars, for value received of him, with interest thereon at the rate of six per cent. per annum, payable at maturity and thereafter semi-annually until paid.

N. L Eure.

John J Sherrin.

J. H Wheeler."

The defendants Eure and Wheeler filed an answer admitting the execution of the note and defending on the ground that it was an accommodation paper. The following instructions were given the jury:

"(1) Upon the proof of the execution of the note by defendants, the placing of it in evidence, showing of demand for payment, and that it has not been paid in whole or in part, the plaintiff makes out a prima facie case in his favor and shifts the burden of the proof, not the burden of the issue, for it remains with the plaintiff at all times, but shifts the burden of the proof to the defendants. Sometimes, gentlemen, question arises as to what is meant by the words 'prima facie.' 'Prima facie' means simply this: That which suffices for the proof of a particular fact until contradicted or overcome by evidence. To the end that there may be no question in your minds as to the rule of law stated to you, I again instruct you that the burden of this issue is upon the plaintiff to satisfy you by the greater weight of the testimony, the preponderance of the testimony, of his right to recover as against the defendants or either of them, and again, at the peril of repetition, to the end that you may be thoroughly enlightened and advised, I repeat what I have just stated to you in the following language:

(2) Upon proof of the execution of the note by the defendants, the placing of it in evidence, the showing of demand for payment, and that it has not been paid in whole or in part, the plaintiff makes out a prima facie case in his favor and shifts from his shoulders to those of the defendants, not the burden of the issue, but the burden of the proof.

(3) If the plaintiff thus makes out a prima facie case and the burden of proof shifts to the defendants, then the defendants in order to defeat such a recovery must show by the greater weight of the testimony that the note was signed without valuable consideration, was given as an accommodation to the plaintiff, and if such facts are shown by the greater weight of the testimony the plaintiff would not be entitled to a recovery."

The issue, "Are the defendants or either of them indebted to the plaintiff and if so in what amount?" was answered in favor of the plaintiff. Judgment. Appeal by defendants.

Primary endeavor of courts in construing statutes is to ascertain and give effect to legislative intent.

The legislative intent must be gathered from the language of the statute, a consideration of the existing law, the evils intended to be remedied, and the remedy applied.

Bynum, Hobgood & Alderman, of Greensboro, for appellants.

Wilson & Frazier and King, Sapp & King. all of Greensboro, for appellee.

ADAMS J.

In Campbell v. McCormac, 90 N.C. 491, it is said:

"At the common law, promissory notes were not negotiable, but were made so by the statute of 3 & 4 Anne, ch. 9, which was re-enacted in this state by the act of 1762, and that act was amended by the act of 1786, which declared them to be negotiable, whether expressed to be payable to order or for value received. Rev. Stat., ch. 13, secs. 1, 2; Rev. Code, ch. 13, sec. 1; The Code, sec. 41. All such notes thus made negotiable import prima facie that they are founded upon a valuable consideration; and while such consideration is essential to their support, yet it is not necessary in an action upon them for the plaintiff to aver and prove such consideration; yet when evidence has been introduced by the defendant to rebut the presumption which they raise, the burden is thrown upon the plaintiff to satisfy the jury by a preponderance of evidence that there was a consideration."

This case was decided in 1884; but the Negotiable Instruments Law, ratified March 8, 1899, made material changes in the law as theretofore declared in reference to bills and notes. Code, c. 6; C. S. c. 58. It is now provided that in negotiable paper the absence or failure of consideration is a matter of defense as against any person not a holder in due course and that partial failure of consideration is a defense pro tanto, whether the failure is an ascertained and liquidated amount or otherwise. C. S. § 3008. In Piner v. Brittain, 165 N.C. 401, 81 S.E. 462, this statute was construed as imposing on the defendant the burden of showing by the greater weight of the evidence that the contract was not supported by a valuable consideration and as modifying in this respect the rule previously obtaining as expressed in Campbell v. McCormac, supra.

But this statute applies only to negotiable instruments. Under the existing law an instrument to be negotiable must conform to several requirements, one of which is that it must be payable to the order of a specified person, or to the bearer. C. S. 2982. Tested by this requirement, the note under consideration is not negotiable; it is not payable to the bearer or to the order of the payee. Johnson v Lassiter, 155 N.C. 47, 71 S.E. 23; Newland v. Moore, 173 N.C. 728, 92 S.E. 367. For the same reason the note sued on in Jones v. Winstead, 186 N.C. 536, 120...