Jones v. Winstead

• Decision Date: 28 November 1923
• Docket Number: 341.
• Citation: 120 S.E. 89,186 N.C. 536
• Parties: JONES v. WINSTEAD ET AL.
• Court: North Carolina Supreme Court

120 S.E. 89

186 N.C. 536

JONES v. WINSTEAD ET AL.

No. 341.

Supreme Court of North Carolina

November 28, 1923

Appeal from Superior Court, Person County; Devin, Judge.

Action by J. J. Jones against J. D. Winstead and another, as administrators of the estate of J. W. Winstead, deceased. Judgment for plaintiff, and defendants except and appeal. No error.

Clark C.J., dissenting.

Where decedent was discharged from an insane asylum 12 years before his death, the presumption that insanity once shown to exist continues was not applicable because too remote, especially as there was evidence that after discharge he successfully carried on his business affairs.

Civil action to recover on a promissory note for $4,000 given by intestate to plaintiff.

Defendants answered and alleged that the note sued on was given without any consideration. Second, that when same was given the intestate was without sufficient mental capacity to execute it. On the trial plaintiff proved the due execution of the note in form as follows:

"April 14, 1919. One year after date I promise to pay J. J. Jones the full and just sum of $4,000 for value received of him. Interest 5 per cent.

[Signed.] J. W. Winstead."

Defendant offered testimony tending to show that at the time of the execution of the note the intestate was not of sufficient mental capacity to execute the note, and, second, that the same being executory was without valuable consideration. In support of the first position, showed among other things that intestate had been three times, at different periods confined in the insane hospitals of the state, the last time being 12 years before the note was given, and that since his discharge on the last occasion he had never been of sound mind or of capacity to execute the note sued on.

In reply plaintiff offered evidence tending to show that since coming from the state hospital 12 years ago, intestate had been in control and management of his own property; that he had a large landed estate, was a good trader, rented out his property himself, and accumulated property; that the note had been executed by intestate in payment of services theretofore rendered by plaintiff to the intestate and in recognition of the claims plaintiff had upon him, and it appeared that the annual interest had been receipted for on the note as per agreement between plaintiff and intestate. The cause was submitted to the jury, and verdict rendered as follows:

"(1) Was the note sued upon executed without any consideration? Answer: No.

(2) Was J. W. Winstead at the time of the execution of the note without sufficient mental capacity to execute same? Answer No.

(3) What amount is due on said note? Answer: $4,000."

Judgment on the verdict, and defendants excepted and appealed, assigning errors.

Brogden, Reade & Bryant, of Durham, M. C. Winstead, of Milton, and F. O. Carver, of Roxboro, for appellants.

Luther M. Carlton and Wm. D. Merritt, both of Roxboro, for appellee.

HOKE J.

The execution of the note, a negotiable instrument, having been duly proven, and same put in evidence, under our statutes and decisions applicable there is a presumption that it was given for value, and the question of a lack of consideration is a matter of defense, the burden being upon the defendant to establish it. Piner v. Brittain, 165 N.C. 401, 81 S.E. 462, and authorities cited; Consol. St. c. 58, §§ 3004, 3006 et seq. There is also a rebuttable presumption that the promissor was sane at the time of the execution of the note, and on that question the burden of showing the contrary, as a general rule, is upon the defendant or the person alleging it.

The court charged the jury generally in accord with these principles, submitting the opposing evidence under full and appropriate instructions, and referring to the fact of defendant's confinement in the asylums of the state and his condition while there as circumstances tending to establish defendant's position. Under these instructions the jury have rendered their verdict for plaintiffs, and after careful consideration we can find no valid reason for disturbing the results of the trial.

It is very earnestly contended by defendants that on the entire evidence, if believed by the jury, including that of plaintiff himself, the note was without any valuable conderation, and his honor should have so ruled in accord with their prayer for instructions to that effect. On that question plaintiff, a witness in his own behalf, testified among other things that plaintiff, at the time of the execution of the note, and for some time prior thereto, was engaged in the sale of tobacco as employee of a warehouse company at South Boston, Va. That intestate, owning a large body of land in this state having numbers of tenants thereon, was in the habit of sending the tobacco grown on his farms to South Boston for sale, and not infrequently, pursuant to intestate's request, by note or otherwise, plaintiff would look after these sales and the disposition of the purchase price, following in such matters defendant's directions given him. Speaking more directly to the execution of the note and the circumstances attending its execution (admitted without objection), the witness said:

"He came over to South Boston one day, and I was busy in the office, and he came in there and told me he wanted to see me, and we went out in the warehouse and sat down on a truck, and he told me that I had been nice to him in South Boston. Lots of times he would send tobacco--some of his tenants would come over, and sometimes sell with me, and, if he did not come himself, he would phone me or write me a letter and tell me what to do with the check, and sometimes he would say let one have so much, and send me a check for the rest, and I always did just as he told me. He told me he appreciated what I had done for him. That Uncle Charles, who had died a few years ago, did not leave me anything as he did some of the rest of his people, and he wanted to help me, and I had been nice to him, and he appreciated what I had done for him, and he was going to give me this note. He said I may pay you the money for this before I die, but he said I am getting to be an old man, and I do not know when I will die. But he said, 'If I die before I pay it, my estate will be worth it, and I want you to collect it.' And that is what I am trying to do. He asked me to credit the interest on this note, and he asked me to send him a receipt, and I sent it to him, and he asked me, 'Did I credit the interest after I sent him the first receipt?' and he was over there sometime later, and asked me, 'Did I credit it on the note?' and I told him I did."

Again, on cross-examination, witness testified as follows:

"I was engaged in the warehouse business for somebody else. He did not sell much tobacco with me. He owned some stock in the Independent Warehouse, and I think his people sold more there than anywhere else. But he did sell some at the other warehouses. He did not sell so much tobacco with me, but if he wasn't coming himself he would usually write me or get somebody to phone me--and he would tell me who was coming and what warehouse they were going to be at, and tell me what he wanted done. If he wanted to let them have anything and what to do with the other.

Q. As a matter of accommodation to him you did as he requested? A. Yes, sir.

Q. He did sometimes sell tobacco at your warehouse? A. Yes, sir.

Q. Of course, when he sold tobacco at your warehouse if he wanted you to do something with the money, you would do it? A. Yes, sir."

On this, the evidence chiefly pertinent, it is insisted for appellant that the facts only present an executory promise to make compensation for a "past consideration," and that the same does not constitute value within the meaning of the exception. It is said by Prof. Page, in his valuable work on contracts:

"At modern law, the term 'past consideration' means that a right has been acquired or forborne, under circumstances that either never created any legal liability to pay therefor, or if there was a legal liability originally, subsequent facts have amounted to a discharge. It does not, of course, mean that a promise may not be supported by a prior legal liability as a consideration, whether absolutely valid, voidable, or subject to some subsequent defense. It does not include cases in which the consideration is a legal liability which arose before the promise was made, and upon which the promise is based. Such forms of consideration are sufficient. As used in this sense, a past consideration is no consideration at modern law in most jurisdictions." Page on Contracts (2d Ed.) § 625.

It will be observed that the evidence all shows that the services in the instant case were rendered by request, and some of the old English decisions, and probably some in this country seem to be to the effect that wherever services are done by request of another this will import a sufficient consideration. But these decisions so far as examined were cases where a request was necessary to create liability, and on the facts presented did create it, and a more careful examination of the principle as pertinent to the facts of the instant case will show, in accord with the above citation, that the question properly depends on whether the present executory promise to pay was given for services formerly rendered, and under circumstances which created a legal liability. In such case, the services, though at a former time, will suffice as a valid consideration for the subsequent promise, and this in turn usually depends on whether the services were given and received without expectation of pay. In Winkle v. Killian, 141 N.C. at page 578, the court, in speaking to the general principal...