Wachovia Bank & Trust Co v. Clifton

• Decision Date: 09 November 1932
• Docket Number: No. 360.,360.
• Citation: 166 S.E. 334,203 N.C. 483
• Parties: WACHOVIA BANK & TRUST CO. v. CLIFTON et al.
• Court: North Carolina Supreme Court

166 S.E. 334

203 N.C. 483

WACHOVIA BANK & TRUST CO.

v.CLIFTON et al.

No. 360.

Supreme Court of North Carolina.

Nov. 9, 1932.

Appeal from Superior Court, Forsyth County; Harding, Judge.

Action by the Wachovia Bank & Trust Company, trustee for Amelia L. Holt, against M. S. Clifton and others. From the judgment, plaintiff appeals.

Affirmed.

Civil action instituted November 14, 1930, to recover on a promissory note.

The complaint alleges:

1. That on July 27, 1924, the defendants, M. S. Clifton and L. L. Joyner, executed their negotiable promissory note in the sum of $3,-000, payable two years after date, to the Wachovia Bank & Trust Company, or order, with interest from date of making, interest payable semiannually, secured by 85 shares of the capital stock of the Farmers' & Merchants' Bank of Louisburg, N.C. and payment thereof guaranteed by indorsement on the back of said note as follows:

"For value received, we guarantee payment of the within note and waive notice of dishonor and protest and all other formalities and consent to remain bound in case of any extension or renewal until said note with interest is fully paid.

"Mrs. T. W. Bickett

"W. Y. Bickett."

2. That the plaintiff, acting under an express trust for the use and benefit of Mrs. Amelia L. Holt, paid full value for said note, and is now the holder and owner of same in due course; that the payment of the principal amount of said note was extended from time to time, as interest was paid, until January 27, 1930, at which time the full amount of the principal became due; wherefore plaintiff prays judgment against the defendants, jointly and severally, for $3,000 with interest from January 27, 1930, and costs.

The guarantors pleaded the 3-year statute of limitations in bar of the plaintiff's right to recover as against them, because the plaintiff, without notice to said defendants, had waited until the collateral given to secure said note had become worthless, and the makers insolvent, before demanding payment.

On the hearing, the plaintiff offered to show that on and prior to January 27, 1924, the Wachovia Bank & Trust Company held a note of the guarantors, as makers, for $3,-000 secured by 85 shares of the capital stock of the Farmers' & Merchants' Bank of Louisburg. Upon the maturity of this note, it was agreed that the collateral should be sold to M. S. Clifton and L. L. Joyner, officers of the said Farmers' & Merchants' Bank, their note for like amount taken therefor, secured by the transferred stock, and payment guaranteed by the makers of the original note. The plaintiff bank received $120 for exchanging said notes. Over objection, the evidence was excluded.

The purpose of this evidence was to show that the relation of the guarantors to the note in suit was really that of sureties and thus to repel the plea of the statute.

There was no evidence to support the allegation that the payment of the principal of said note had been extended or renewed from time to time.

In the county court, judgment was rendered against the makers, M. S. Clifton and L. L. Joyner, and nonsuit ordered against the guar-antors, which was affirmed on appeal to the superior court of Forsyth county, from which latter judgment, the plaintiff appeals, assigning errors.

Manly, Hendren & Womble, of Winston-Salem, for appellant.

Yarborough & Yarborough, of Louisburg, and R. B. White, of Wake Forest, for appellees.

STACY, C. J.

The exclusion of the evidence, which forms the basis of a number of exceptions, may be upheld upon the ground that the complaint declares on the note as it is written, and not otherwise. There is no effort in the pleadings to enlarge the liability of any of the parties. State ex rel. Greene County v. Nat. Bank of Snow Hill, 193 N.C. 524, 137 S. E. 593. Nor is there a plea in defense of nudum pactum. Consideration is admitted-- or not denied. The defendants have been sued simply as makers and guarantors of a note, and this more than three years after its maturity. There is no evidence that said note was extended or renewed from time to time. Wrenn v. Lawrence Cotton Mills, 198 N.C. 89, 150 S. E. 676.

The question then arises: Does payment of interest by the makers of a note, after maturity but before it is barred, nothing else appearing, toll the statute of limitations against those who have guaranteed the payment of said note? We think not.

it is provided by C. S. § 441 that an action upon a contract, obligation, or liability arising out of contract, express or implied (except those mentioned...