McGowan v. Beach

• Decision Date: 13 April 1955
• Docket Number: No. 310,310
• Court: North Carolina Supreme Court
• Parties: Mrs. Lols Sanders McGOWAN v. Benjamin BEACH, Administrator of the Estate of Wade H. McGowan, deceased.

Page 763

86 S.E.2d 763

242 N.C. 73

Mrs. Lols Sanders McGOWAN v. Benjamin BEACH, Administrator of the Estate of Wade H.

McGowan, deceased.

No. 310

Supreme Court of North Carolina.

April 13, 1955

W. H. Strickland, Lenoir, for plaintiff, appellee.

L. H. Wall, Hal B. Adams, Lenoir, for defendant, appellant.

DENNY, Justice.

The defendant interposed no objection to the issues submitted to the jury but excepts and assigns as error the refusal of the court below to submit the following issue: 'Did the plaintiff loan the deceased, Wade H. McGowan, the sum of $15,000, as alleged by the plaintiff?'

The general rule with respect to the sufficiency of issues was stated by Winborne, J., in Cherry v. Andrews, 231 N.C. 261, 56 S.E.2d 703, 707, as follows: 'Issues submitted are sufficient when they present to the jury proper inquiries as to all determinative facts in dispute, and afford the parties opportunity to introduce all pertinent evidence and to apply it fairly.' See also Lister v. Lister, 222 N.C. 555, 24 S.E.2d 342; Oliver v. Oliver, 219 N.C. 299, 13 S.E.2d 549; Saieed v. Abeyounis, 217 N.C. 644, 9 S.E.2d 399; Hill v. Young, 217 N.C. 114, 6 S.E.2d 830. In our opinion, the issues submitted were not only sufficient but proper in light of the allegations in the complaint, the denials thereof in the answer, and the evidence adduced at the trial.

It should be kept in mind that the alleged transaction, which resulted in the execution of the instrument upon which the plaintiff brings this action, was a personal transaction between the plaintiff and her deceased husband. Therefore, it was not permissible under the provisions of G.S. § 8-51 for the plaintiff to have testified that she loaned her deceased husband the alleged sum of $15,000, or that she saw him sign the instrument and that he delivered it to her. Lister v. Lister, supra. Any right to recover on the instrument must flow from its legal effect as written, coupled with the fact that the plaintiff had it in her possession and introduced it in evidence at the trial. Pate v. Brown, 85 N.C. 166.

The instrument in this action purports to be under seal and wholly in the handwriting of the executant thereof, and the plaintiff offered evidence to the effect that the entire instrument was in the handwriting of W. H. McGowan. Moreover, the defendant does not attack the sufficiency of the evidence to support the answer of the jury to the first issue, except by motion to nonsuit. However, in his brief, the only argument in support of this motion is to the effect that the plaintiff offered no proof that the word 'seal' was written after the name of the maker at the time he executed the instrument and, if so, that he adopted it as his seal. There is no contention on the part of the defendant that if the maker of the instrument wrote the word 'seal' after his name at the time he executed the instrument and adopted it as his seal that the defendant would be entitled to a nonsuit. We think that where an instrument is wholly in the handwriting of the maker, it would be strange indeed for him to go to the trouble of writing the word 'seal' after his name unless it was his intention to adopt it as his seal, and such intention will be presumed. In fact, our Court has held that a seal appearing upon an instrument, opposite the name of the maker, in the place where the seal belongs, will in the absence of proof that the maker intended otherwise, be valid as a seal. Hughes v. Debnam, 53 N.C. 127; Devereux v. McMahon, 108 N.C. 134, 12 S.E. 902, 12 L.R.A. 205; Allsbrook v. Walston, 212 N.C. 225, 193 S.E. 151; Union Nat. Bank v. Jonas, 212 N.C. 394, 193 S.E. 265. And this Court said in Jefferson Standard Life Insurance Co. v. Morehead, 209 N.C. 174, 183 S.E. 606, 607, that '* * * in any event, the maker would have the burden of overcoming the presumption arising from the presence of a seal.' Furthermore, the defendant admits in his brief that in the trial below, 'no questions were asked about the seal, and no evidence offered tending to show its presence or adoption.'

From an examination of the evidence, it is quite clear that the battle below was waged over the question as to whether the instrument introduced by the plaintiff was executed by W. H. McGowan, deceased. Moreover, counsel for defendant in the oral argument before this Court admitted that the questions now urged with respect to the seal were not raised in the trial below. 'An appeal ex necessitate follows the theory of the trial'--Stacy, C. J., in Coral Gables, Inc., v. Ayres, 208 N.C. 426, 181 S.E. 263, 264. See also Hargett v. Lee, 206 N.C. 536, 174 S.E. 498 and Potts v. Life Insurance Co., 206 N.C. 257, 174 S.E. 123. Therefore, since the question as to whether the seal was placed on the instrument by the maker and adopted by him, was not raised in the trial below, except by a general denial of the genuineness of the instrument, and no issue having been tendered with respect thereto, the motion for judgment as of nonsuit will be denied. Consequently, the plaintiff's right to recover must turn solely upon the legal effect of the instrument as written, including the seal, since the jury found that W. H. McGowan executed it as alleged in the complaint.

It is said in 12 Am.Jur., Contracts under Seal, section 74, page 567: 'At common law a promise under seal, but without any consideration, is binding because no consideration is required in such a case or, as is sometimes said, because the seal imports, or gives rise to a presumption of, consideration. It has been said that the solemnity of a sealed instrument imports consideration or, to speak more accurately, estops a covenantor from denying a consideration except for fraud,' citing Thomason v. Bescher, 176 N.C. 622, 97 S.E. 654, 655, 2 A.L.R. 626.

Hoke, J. (later Chief Justice), in speaking for the Court in the last cited case, said: 'It is the accepted principle of the common law that instruments under seal require no consideration to support them. Whether this should rest on the position that a seal conclusively imports a consideration, or that the solemnity of the act imports such reflection and care that a consideration is regarded as unnecessary, such instruments are held to be binding agreements enforceable in all actions before the common-law courts....