Newbern Banking & Trust Co. v. Duffy

• Decision Date: 21 September 1910
• Citation: 68 S.E. 915,153 N.C. 62
• Parties: NEWBERN BANKING & TRUST CO. v. DUFFY et al.
• Court: North Carolina Supreme Court

68 S.E. 915

153 N.C. 62

NEWBERN BANKING & TRUST CO. v. DUFFY et al.

Supreme Court of North Carolina

September 21, 1910

Appeal from Superior Court, Craven County; Lyon, Judge.

Action by the Newbern Banking & Trust Company against R. N. Duffy and others. From a judgment for plaintiff, defendant D. H Green appeals. Modified.

The admission by the maker of a note of a demand on him for payment of interest is not binding on the payee who has endorsed the note, but he may deny that any demand has been made.

Simmons Ward & Allen, for appellant.

Moore & Dunn and Loftin, Varser & Dawson, for appellee.

WALKER J.

This action was brought to recover the amount of a note, which is in the following words and figures: "Newbern, N.C. March 3, 1909. $5,000.00. On or before three years after date, we promise to pay to the order of D. H. Green, Five Thousand Dollars ($5,000.00) with interest from date at six per cent (6 per cent) per annum, payable at the National Bank of Newbern, N.C. Value received. Interest is payable one year after date and annually thereafter. If any instalment of interest is not paid when due or within ten days after demand, then the principal of said note shall become due and payable. The makers and endorsers of this note hereby waive notice of dishonor and notice of protest and protest itself and agree to become bound, notwithstanding any extension or extensions. Witness our hands and seals. [Signed] R. N. Duffy. [Seal.] A. C. Burnett. [Seal.]" The note was indorsed and transferred for value by D. H. Green, the payee, to the plaintiff, who is now the owner thereof.

It is alleged in the complaint that, the first installment of interest not having been paid when it was due, demand was made for the payment of the same, and no part thereof has been paid. The defendant A. C. Burnett was not served with process, and the defendant R. N. Duffy failed to appear and answer. The defendant D. H. Green answered, and denied that any demand had been made for the payment of interest, as alleged in the complaint. Plaintiff moved for judgment against the defendants R. N. Duffy and D. H. Green "upon the answer of Green; no other answers having been filed." The defendant resisted the motion upon the ground, among others, that no judgment could be given upon the pleadings, as the allegation of a demand for the payment of interest had been denied, which raised an issue as to the truth of the allegation, and therefore, for the purposes of the motion, it must be assumed that the principal of the note was not due when the action was commenced. The court refused to render judgment, and the plaintiff appealed. The contention of the plaintiff is that a demand was not necessary, as it had been waived by the very terms of the note, and, besides, that by a proper construction of the note the principal became due when there was a default in the payment of the first installment of interest; the words "or within ten days after demand" being immaterial or surplusage. The clause by which the makers and indorsers of this note waive notice of dishonor and protest and agree to remain liable, notwithstanding any extension of the time of payment, does not refer to the next preceding clause as to nonpayment of interest and the maturity of the principal, but to the notice required to prevent...