Thompson v. Osborne

• Decision Date: 27 April 1910
• Citation: 67 S.E. 1029,152 N.C. 408
• Parties: THOMPSON v. OSBORNE.
• Court: North Carolina Supreme Court

67 S.E. 1029

152 N.C. 408

THOMPSON v. OSBORNE.

Supreme Court of North Carolina

April 27, 1910

Appeal from Superior Court, Ashe County; E. B. Jones, Judge.

Action by E. E. Thompson against D. A. Osborne. From a judgment of nonsuit, plaintiff appeals. Reversed, and new trial granted.

In an action by an assignee of a nonnegotiable note, the truth of the allegations of the answer, as to the agreement between the maker and the payee, is for the jury, and the court cannot assume the truth thereof and rule against plaintiff.

T. C Bowie and R. A. Doughton, for appellant.

WALKER J.

This action was brought to recover the amount of a bond or a note under seal, executed by the defendant to B. Morris, and by the latter assigned for value to the plaintiff, E. E Thompson. The bond is in the following words and figures "$120.00. November 15, 1904. Four months after date I promise to pay B. Morris one hundred and twenty dollars for value received in land this day bought from him, adjoining lands of H. Wingler, John Royal heirs and others. This note is to be discharged by D. A. Osborne delivering to B. Morris on cars in town of Durham, N. C., ten thousand (10,000) feet of black pine lumber, 12 feet long, log run (mill culls out), to be sawn widths and thicknesses as per order to be furnished. D. A. Osborne to pay freight on lumber. D. A. Osborne. [Seal.]" The defendant alleged, in his answer, that the bond was given for the purchase money of a tract of land, and that B. Morris, who sold the land to him and to whom he gave the note, had promised to make him a good and perfect title to the land which he had purchased, and that at the time the note was given the said B. Morris did not have a good and perfect title to the land, although he had represented to the plaintiff that he had a good and perfect title thereto, and he further averred, in his answer, that the plaintiff purchased the note, and the same was indorsed after its maturity, and, therefore, he took the same with full notice and knowledge of the agreement between B. Morris and the defendant, and that, as Morris did not have the title to the land, the plaintiff was not entitled to recover the amount of the note. After the pleadings were read, and before any testimony was introduced by either party, the court intimated that, as the note was not negotiable, the plaintiff was not entitled to recover in the action, whereupon he submitted to a nonsuit and appealed to this court.

The right of the plaintiff to recover upon the note did not depend upon its negotiability, for, if it was not negotiable the plaintiff would be entitled to recover the amount of the...