Mitchell v. Strickland

• Decision Date: 10 October 1934
• Docket Number: 168.
• Citation: 176 S.E. 468,207 N.C. 141
• Parties: MITCHELL v. STRICKLAND et al.
• Court: North Carolina Supreme Court

176 S.E. 468

207 N.C. 141

MITCHELL v. STRICKLAND et al.

No. 168.

Supreme Court of North Carolina

October 10, 1934

Appeal from Superior Court, Hertford County; Barnhill, Judge.

Action by Paul H. Mitchell against V. D. Strickland and Talmage Baker. From a judgment on the pleadings for plaintiff against both defendants, defendant Baker appeals.

Reversed.

Plaintiff's motion for judgment on answer is, in effect, demurrer to answer, and can prevail only when matters pleaded constitute admission of plaintiff's cause of action, are insufficient as defense, or constitute new matter insufficient in law to defeat plaintiff's claim.

J. H Matthews, of Windsor, and E. L. Travis, of Halifax, for appellant Baker.

Tyler & Cherry, of Ahoskie, and A. T. Castelloe, of Aulander, for appellee.

SCHENCK Justice.

The plaintiff in his complaint alleges: (1) The residence of the parties; (2) that the defendant Strickland executed and delivered to the plaintiff for valuable consideration a note for $500 payable in 12 months after date; (3) that prior to the delivery and before maturity of said note the defendant Baker indorsed the same by signing his name across the back thereof, and that the plaintiff thereupon became the owner and holder in due course of said note; and (4) that said note is past due and unpaid, and demand for payment has been made and refused.

The defendant Talmage Baker in his answer (1) admits the residences as alleged; (2) admits that he indorsed a note for $500, but denies for lack of information that it was the note described in the complaint; (3) denies that the plaintiff is the owner and holder of the note in due course; and (4) admits demand for and refusal of payment of the note; and for a further answer avers that his codefendant Strickland was cashier and had the entire management and control of a bank in which the plaintiff had a deposit of some $7,500, and that the defendant Strickland had converted to his own use a large part of this deposit, and that the plaintiff had made demand upon the defendant Strickland to make such conversion good and that in order to save the plaintiff from loss the defendant Strickland and the plaintiff entered into collusion to procure the defendant Baker to indorse the note of his codefendant Strickland to the plaintiff by falsely representing that the plaintiff had agreed to lend Strickland the amount of the note for the purpose of furnishing and equipping a law office, provided he could obtain the indorsement of the defendant Baker, and that both the plaintiff and Strickland knew at the time that the plaintiff had not promised to lend Strickland any money at all and was not going to do so, and that the proceeds of the note were to be used not to equip a law office, but were to reimburse the plaintiff for his losses due to the defalcation of Strickland, and that the defendant Baker's indorsement on said note was obtained by the wrongful, false, and fraudulent representations made to him by the defendant Strickland, and further avers, that the plaintiff had full...