Piner v. Brittain

• Decision Date: 29 April 1914
• Docket Number: (No. 321.)
• Citation: 166 N.C. 401,81 S.E. 462
• Court: North Carolina Supreme Court
• Parties: PINER. v. BRITTAIN.

(166 N.C. 401)

81 S.E. 462

PINER.

v.BRITTAIN.

(No. 321.)

Supreme Court of North Carolina.

April 29.1914.

Bills and Notes (§ 493*)—Want of Consideration—Burden of Proof.

Under Revisal 1905, § 2176, providing that failure, or partial failure, of consideration is a defense against any person not a holder of a note in due course, the burden of proving want of consideration of a note sued on by the payee is on the maker.

[Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. §§ 1652-1662; Dec. Dig. § 493.*] Hoke, J., dissenting.

Appeal from Superior Court, New Hanover County; Rountree, Judge.

Action by T. D. Piner against B. F. Brit-tain, Jr. From a judgment for plaintiff, defendant appeals. Affirmed.

Kellum & Loughlin, of Wilmington, for appellant.

John D. Bellamy & Son, of Wilmington, for appellee.

CLARK, C. J. The court charged the jury, among other things, as follows: "This is a suit upon a promissory note between the payee and the maker, but the burden of proof of the, issue is upon the plaintiff to show the execution of the note, and that it has not been paid. The defendant, the maker, contends that it was given without consideration, for the accommodation of the plaintiff. Upon the proof of the note, the placing of it in evidence, showing demand for payment, and that it has not been paid, the plaintiff makes out a prima facie case in his favor, and shifts the burden of proof to the defendant. The defendant has offered testimony tending to show that the note sued upon is an accommodation note, and the plaintiff has offered testimony tending to show that it was executed for a valuable consideration. Now the court charges you that the defendant must show, by the greater weight of the evidence, that the note was signed by him without valuable consideration, and if you find by the greater weight of the evidence that the note was given as an accommodation to the plaintiff, and the burden of this is on the defendant, then the court charges you that it was given without consideration."

The exception of the defendant raises but one question, Upon whom rests the burdea of proof to show want of consideration? The note recites on its face "for value received, " and the plaintiff having shown without conflict of evidence the execution of the note, demand for payment, and nonpayment, the court charged that if the jury should so find, the burden of proof was on the defendant to show lack of consideration.

Revisal 1905, § 2176, provides: "Absence or failure of consideration is matter of defense as against any person not a holder in due course, and partial failure of consideration is a defense pro tanto, whether the failure is an ascertained and liquidated amount or otherwise." As to matter of defense, the burden of proof rests upon the defendant who asserts it.

This very point was passed upon by Brown, J., in Conservatory v. Dickenson, 158 N. C. 207, 73 S. E. 990, in which it is said that, although notes as simple contracts require a consideration to support them, it has been long settled that they import a consideration prima facie, so as to...