Lewis v. Long

• Decision Date: 11 May 1889
• Citation: 102 N.c. 206,9 S.E. 637
• Court: North Carolina Supreme Court
• Parties: Lewis v. Long.

9 S.E. 637

(102 N.c. 206)

Lewis

v.Long.

Supreme Court of North Carolina.

May 11, 1889.

Negotiable Instruments—Sureties.

A joint maker of a negotiable note cannot show that he signed only as surety, as against a bona fide holder who purchased the note before maturity without notice; and one who purchases from the latter without notice, though after maturity, stands in the shoes of his assignor.

Appeal from superior court, Halifax county; Graves, Judge.

This is a civil action, commenced before a justice of the peace on the 2d day of April, 1888, and, upon judgment in favor of the plaintiff, the defendant W. W. Long appeals to the superior court. The action is brought upon a note under seal, which is as follows: "$100.09. On or before the 1st day of November, 1883, we, or either of us, promise to pay, to J. M. Grizzard or order, the sum of one hundred dollars, for value received. Witness our hands and seals this 9th day of June, 1883. Aaron Prescott. [Seal.] W. W. Long. [Seal.]" The said note was indorsed by J. M. Grizzard for value to one Mrs. Alice M. Cooper, and by her indorsed and transferred for value, after maturity, to the plaintiff. The defendant Prescott was principal to the note, and the defendant Long was surety thereto. This was known to J. M. Grizzard, the original payee, but was not known to the plaintiff. More than three years have accrued from the maturity of the note to the bringing of this action. The plaintiff bought the note for value, believing both Prescott and Long were principals, and jointly responsible. "Judgment. It is ordered and adjudged that the plaintiff recover nothing of the defendant W. W. Long, and that he go without day and recover his costs. J. F. Graves, Judge Presiding." From this judgment the plaintiff appeals.

Batchelor & Devereux and E. T. Clark, for appellant. Mullen if? Daniel, for appellee.

Shepherd, J, Whether a joint promisor may show by parol that he signed only as surety has been the subject of conflicting decisions, both in England and America. That he can do so in this state, where the payee has notice, is well settled. Capell v. Long, 84 N. C. 17; Goodman v. Litaker, Id. 10; Welfare v. Thompson, 83 N. C. 279. But such a defense cannot be made against a bona fide holder without notice. Rand." Com. Paper, § 907; Daniel, Neg. Inst. § 1338; 2 Edw. Bills & N. 692; Goodman v. Litaker, supra. The note sued upon was under seal, but was indorsed, and is "to be regarded, so far as its negotiability is concerned, and its liability to be governed by the commercial law applicable to promissory notes, as if it were a promissory note not under seal."

Miller v. Tharel, 75 N. C. 150; Spence v. Tapscott, 93 N. C. 246. It was indorsed to Mrs. Cooper, and the law presumes that she took "it for value, and before dishonor, in the regular course of business." Tredwell v. Blount, 86 N. C. 33; Pugh v. Grant, Id. 39. Mrs. Cooper, being a bona fide holder, and having no notice, would have been unaffected by the defense relied upon...