Welfare v. Thompson

• Decision Date: 30 June 1880
• Citation: 83 N.C. 276
• Court: North Carolina Supreme Court
• Parties: T. S. WELFARE v. W. L. THOMPSON and others.

83 N.C. 276

T. S. WELFARE

v.W. L. THOMPSON and others.

Supreme Court of North Carolina.

June Term, 1880.

CIVIL ACTION tried at Spring Term, 1880, of DAVIDSON Superior Court, before Buxton, J.

The action was brought upon a single bill which was as follows:

+-----------------------------------------+
                ¦$450.¦LEXINGTON, N. C., April 25th, 1876.¦
                +-----------------------------------------+
                

One day after date we promise to pay to the order of T. S. Welfare the sum of four hundred and fifty dollars without defalcation, value received at eight per cent. per annum.

+--------------------------------+
                ¦(Signed)¦W. L. THOMPSON, (Seal.)¦
                +--------+-----------------------¦
                ¦        ¦J. H. THOMPSON, (Seal.)¦
                +--------+-----------------------¦
                ¦        ¦C. M. THOMPSON, (Seal.)¦
                +--------+-----------------------¦
                ¦        ¦C. F. LOWE, (Seal.)    ¦
                +--------+-----------------------¦
                ¦        ¦F. M. THOMPSON, (Seal.)¦
                +--------------------------------+
                

The defendants, W. L. Thompson and J. H. Thompson, made no defence to the action. The other defendants, C. M. Thompson, C. F. Lowe and F. M. Thompson, filed a joint answer and set up for their defence that each was a surety on the note and that the plaintiff's cause of action against them was barred by the statute of limitations, not having been brought within three years after the cause of action accrued.

The following issues were submitted to the jury:

I. Was C. M. Thompson a surety to the note?

II. If yes, did Welfare know it before he received the note and loaned the money?

III. Was F. M. Thompson a surety to the note?

IV. If yes, did Welfare know it before he received the note and loaned the money?

V. Was C. F. Lowe security to the note?

VI. If yes, did Welfare know it before he received the note and loaned the money?

All of these issues were found by the jury in favor of the defendants. Thereupon judgment was rendered against W. L. Thompson and J. H. Thompson, and in favor of C. M. Thompson, F. M. Thompson and C. F. Lowe, and that they recover their costs. There was a motion for a venire de novo.

The motion was disallowed. The plaintiff then moved for judgment on the complaint and answer, which was refused and he appealed.

Mr. W. H. Bailey, for plaintiff .

Mr. J. M. McCorkle, for defendants .

ASHE, J.

There were two exceptions taken in the progress of the trial, first, to the admission of parol evidence to prove that the defendants C. M. Thompson, C. F. Lowe and F. M. Thompson were sureties to the note, and secondly, to the refusal of His Honor to give the instructions prayed by plaintiff, to wit, that the statute of limitations was not a bar to any of the defendants, it being conceded that ten years had not expired after the execution of the note when the suit was brought. The authorities are very uncertain and conflicting upon the question whether or not it may be shown by parol that a joint promisor or obligor was in fact a surety. Some of the authorities hold that in law it cannot be done but is a defence available in equity and the proof is admissible whenever equitable pleas are allowed in courts of law, and especially in our system where the distinctions between actions at law and suits in equity are abolished.

The current of authorities seems to incline to the conclusion that the testimony is admissible upon an equitable principle of protecting the rights of the surety. Some hold that to give this equitable protection to the surety, the holder or obligee must have had knowledge of the fact of suretyship when he received the note...