Planters' Bank & Trust Co. v. Yelverton

• Decision Date: 18 April 1923
• Docket Number: 110.
• Parties: PLANTERS' BANK & TRUST CO. v. YELVERTON.
• Court: North Carolina Supreme Court

117 S.E. 299

185 N.C. 314

PLANTERS' BANK & TRUST CO. v. YELVERTON.

No. 110.

Supreme Court of North Carolina

April 18, 1923

Appeal from Superior Court, Wayne County; Allen, Judge.

Action by the Planters' Bank & Trust Company against Annie Pipkin Yelverton. Judgment for defendant, and plaintiff appeals. No error.

An appellant cannot complain of a court's submission of six issues to the jury merely because he tendered three issues where the courts submitted the issues so that the parties could have the full benefit of their contentions before the jury.

The plaintiff alleged that the defendant executed and thereafter indorsed and transferred to it before maturity her promissory note in words and figures as follows:

"$5,000.00 May 26, 1920.

Nov 15, 1920, after date, I, we, or either of us, promise to pay to the order of myself the sum of five thousand dollars, for value received, payable at Planters' Bank & Trust Company, Fremont, N. C., with interest from date at the rate of 6 per cent. per annum until paid. The makers and indorsers of this note hereby waive demand of payment, protest and notice of protest, and hereby consent that time of payment may be extended without notice thereof.

Annie Pipkin Yelverton."

The defendant denied both the execution and the indorsement of the note, and alleged that the Cushing Petroleum Company by means of false and fraudulent representations had induced her to agree to execute her note upon the express agreement that its delivery should be conditioned upon the company's holding it until after the 1st of October and until the "pool stock" should be offered for sale to discharge the note; that the note had been materially altered since last seen by the defendant; that the sale of the stocks was unlawful because the petroleum company was subject to and had not complied with C. S. §§ 6363-6475, ncl.; that there was no contract in writing between the company and the defendant; that the company received a commission greatly in excess of the commission allowed by law; and that the note if executed, was illegal, null, and void. The issues were answered as follows:

"(1) Was the note introduced in evidence by the plaintiff signed by the defendant, Annie Pipkin Yelverton, as maker? Answer: Yes.

(1 1/2) Did she indorse said note on the back? Answer: No.

(2) If so, was the signature as maker of said note obtained by the agents of the Cushing Petroleum Company by misrepresentation and fraud? Answer: Yes.

(3) If so, is the plaintiff bank the innocent holder of said note in due course and without notice of infirmities? Answer: No.

(4) Was the note, after the delivery to the said agents, altered by the insertion without the authority of the defendant of the words 'Planters' Bank & Trust Company, Fremont, N. C.'? Answer: Yes.

(5) If so, did the plaintiff have notice of it? Answer: No."

Judgment for the defendant. Appeal by the plaintiff.

Langston, Allen & Taylor, of Goldsboro, for appellant.

Dickinson & Freeman, of Goldsboro, for appellee.

ADAMS J.

The first 15 exceptions relate to the admission or rejection of evidence and require no special discussion. The evidence excepted to was competent as tending to show such knowledge by the plaintiff of the defendant's equities as amounted to bad faith in taking the note, or fraud in procuring its execution, or some incidental circumstance in corroboration of other testimony; and the excluded evidence which is the subject of exceptions 10, 11, and 11 1/2, was not in any view competent against the defendant.

Equally untenable are the defendant's several exceptions to the issues which were submitted to the jury. The plaintiff tendered three, but the court submitted six with the manifest purpose of enabling the parties to have the full benefit of all their contentions before the jury. On what ground the plaintiff can legitimately complain of this is not perceived. Patterson v. Mills, 121 N.C. 258, 28 S.E. 368; Pretzfelder v. Ins Co., 123 N.C. 164, 31 S.E. 470, 44 L. R. A. 424; Strauss v. Wilmington, 129 N.C. 99, 39 S.E. 772; Holler v. Tel. Co., 149 N.C. 337, 63 S.E. 92, 19 L. R. A. (N. S.) 475; Brewer v. Ring, 177 N.C. 476, 99 S.E. 358.

Exceptions 24 to 29 1/2 are addressed to the court's refusal to give certain prayers for instructions. The plaintiff claims to have been entitled to these instructions principally on the ground that there is no sufficient evidence of fraud, and for this reason it becomes necessary to examine the defendant's allegations as well as the evidence tending to support them. The defendant alleges:

"That on or about the 26th day of May, 1920, agents of the Cushing Petroleum Company approached the defendant and represented to her that the said company was offering for sale a limited amount of its capital stock known and designated by said company as 'pool stock'; that this pool stock was to be released for transfer or sale on October 1, 1920, and that immediately after the release of said pool stock or contemporaneously with said release, the capital stock of the company would be offered for sale on the open market; that if the defendant would execute a note to said company, certain shares of said pool stock would be issued by the company in her name and attached to said note which was to be held by said company and not to be transferred or sold; that upon the release of said pool stock a sufficient number of shares of the pool stock issued in the name of the defendant would be sold to pay off and discharge the said note of the defendant and the balance of the unsold stock would then be issued and delivered to the defendant; that the said agent further represented to the defendant that the property and other assets of the company so far exceeded its liabilities that when said stock was offered for sale its market value would be nearly three times its par value; that all of said representations were false and untrue, and were made with the intent and purpose of defrauding the defendant in the sale of said stock to her, as the defendant is informed and believes, and therefore alleges."

She further alleges that by these representations she was deceived and induced to agree to execute her note with the express understanding that it should be held by the Petroleum Company until after the 1st day of October and until the "pool stock" should be offered for sale, that when the capital stock was sold the note and the "pool stock" which was not sold to discharge the note should be returned, and that the company failed and refused to abide by and perform its agreement.

There was evidence tending to show that the agents of the petroleum company when soliciting the execution of the note told the defendant she would never be called on for any money; that they wanted her to lend them her credit by executing the note, which they agreed to return to her prior to the 1st day of October with certificates of stock attached; that they said they had made arrangements to take care of her note; that she "would not have to pay a penny"; that she never indorsed the note; and that it was altered by the insertion of the "Planters' Bank & Trust Company" after she had signed it.

As a general rule, fraud cannot be predicated upon promissory representations (Pritchard v. Dailey, 168 N.C. 330, 84 S.E. 392), because a promise to perform an act in the future is not in the legal sense a representation, but it may be predicated upon the nonperformance of a promise when the promise is a device to accomplish the fraud. 12 R. C. L. 254 et seq. The question involves the promisor's state of mind as a fact (for such condition of mind is a fact) and a misrepresentation of the state of one's mind is therefore a misstatement of an existing fact. 26 C.J. 1093; 8 W. L. R. 570. The principle is thus stated in Hill v. Gettys, 135 N.C. 373, 47 S.E. 449:

" 'The general rule in regard to promises is that they are without the domain of the law unless they create a contract, breach of which gives to the injured party simply a right of

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