State Bank of Chicago v. Carr

• Decision Date: 13 June 1902
• Citation: 41 S.E. 876,130 N.C. 479
• Parties: STATE BANK OF CHICAGO v. CARR.
• Court: North Carolina Supreme Court

41 S.E. 876

130 N.C. 479

STATE BANK OF CHICAGO v. CARR.

Supreme Court of North Carolina

June 13, 1902

Appeal from superior court, Durham county; Neal, Judge.

Action on a note by the State Bank of Chicago against J. S. Carr. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

It is not error to take a deposition at plaintiff's business place, in which the witnesses are employed, when that was the place named in the notice, and no prejudice to defendant was shown to have been caused thereby.

Guthrie & Guthrie, for appellant.

Manning & Foushee, for appellee.

CLARK J.

It was not error to refuse to submit the issue tendered,--whether the defendant was accommodation indorser and surety. That inquiry could have no bearing in this action, for the plaintiff could sue any indorser without joining the maker or other indorser. Bank v. Carr, 121 N.C. 113, 28 S.E 186; Moore v. Carr, 123 N.C. 426, 31 S.E. 832; Bank v. Lumber Co., 123 N.C. 26, 31 S.E. 348. And as there is only one defendant, the principle in Parrish v Graham, 129 N.C. 230, 39 S.E. 825, does not apply, for that was an adjustment of the rights of defendants as between themselves, as provided by Code, § 424.

Exceptions 2 and 3 are to the sufficiency of the protest. This action is upon a promissory note in which the defendant was payee and indorser. The defendant admits that, if this had been a North Carolina note, protest would not have been necessary, but contends that, the note bearing date "Richmond Va.," and payable at no particular place, it was a Virginia contract, and notice of protest was necessary. But there was no allegation or evidence as to the Virginia law and, that being lacking, the common law is presumed to prevail (Moody v. Johnson, 112 N.C. 801, 17 S.E. 578), under which it was not necessary to protest this note, and the issue on this point was immaterial and irrelevant.

Exceptions 4 and 5 are that the evidence was not sufficient to show that the plaintiff was a corporation. There was in evidence a properly certified copy of an amended charter (1900) to plaintiff as a corporation to do a banking business, signed by the auditor of Illinois; said copy being certified by the recorder of deeds of Chicago as a true copy from the records in his office; and, further, the deposition of the cashier that the bank had been duly organized and acting under said charter, and had been for 10 years previous doing business...