Wolfe v. Eaker
| Decision Date | 16 December 1980 |
| Docket Number | No. 8027SC458,8027SC458 |
| Citation | 50 N.C.App. 144,272 S.E.2d 781 |
| Parties | , 30 UCC Rep.Serv. 574 W. B. WOLFE and Ruth M. Wolfe v. Mr. and Mrs. William F. EAKER. |
| Court | North Carolina Court of Appeals |
Hugh W. Johnston, Basil L. Whitener and Anne M. Lamm, Gastonia, for plaintiffs-appellants.
Hollowell, Stott & Hollowell by L. B. Hollowell, Jr., Gastonia, for defendants-appellees.
At the close of plaintiffs' evidence the trial judge entered a directed verdict because the plaintiffs had produced no evidence of any of the allegations upon which they sought to establish their claim. The directed verdict against the plaintiffs on their claim was proper. Plaintiffs neither object, except nor assign error to the directed verdict against them on their claim, but instead argue alleged errors in directing the verdict on defendants' counterclaim. We hold that on the unique facts of this case the directed verdict for the defendants on the plaintiffs' claim required as a matter of law a directed verdict for the defendants on their counterclaim since the issues and the burden of proof were identical to those in the plaintiffs' original claim.
Defendants, on their counterclaim, met their initial burden of proof by producing a signed promissory note evidencing an obligation of $12,500.00. "(P)roduction of the instrument entitles the holder to recover on it unless the defendant (herein the plaintiffs Wolfe) establishes a defense." G.S. 25-3-307(2). Plaintiffs then had the same burden in the defendants' counterclaim that they had in their original claim; i. e., that of proving want of consideration and non-delivery, both defenses to their liability on the note, G.S. 25-3-306(c), and of proving discharge and satisfaction to the extent of the unknown amounts plaintiffs alleged defendants received from the partnership proceeds, G.S. 25-3-603(1). A directed verdict for defendants, even though they had the initial burden of proof, was proper where, as here, the controlling evidence was documentary and the non-movants failed to contradict or impeach it. Bank v. Burnette, 297 N.C. 524, 256 S.E.2d 388 (1979). See Note, Directing a Verdict in Favor of the Party with the Burden of Proof, 16 Wake Forest L.Rev. 607 (1980).
Plaintiffs failed to establish the defense of want of consideration. Plaintiffs offered evidence that they executed the note for $12,500.00 in consideration for Eakers' loan for $25,000.00 to the Hewes Building Supply. Hewes and Wolfe were partners in the building supply. Mr. and Mrs. Hewes were to have executed a note in like amount. Plaintiffs assigned as error the judge's exclusion of the evidence they claim tended to show that the loan went not to the plaintiffs personally, but to the partnership. That the loan was to the partnership and not to the plaintiffs personally does not establish a want of consideration. As noted in Official Comment 3 to G.S. 25-3-408, the consideration required under the Uniform Commercial Code, G.S. Ch. 25, is defined by the ordinary rules of contract law, which find consideration in either "some benefit or advantage to the promisor, or ... some loss or detriment to the promisee." Mills v. Bonin, 239 N.C. 498, 502, 80 S.E.2d 365, 367 (1954). The evidence disclosed detriment to the promisee Eaker in the amount of $25,000.00. Also, since the Wolfes got what they bargained for, as a matter of law this was sufficient consideration to support their promise to pay $12,500.00, it not being essential that the consideration flow directly to the plaintiffs. Plaintiffs' assignment of error to the judge's exclusion of evidence that the loan went to the partnership is overruled.
Plaintiffs offered no evidence of non-delivery. The evidence showed that plaintiffs gave the note to Hewes with the intention that it be placed with the Hewes note and be given to Eaker. This was done in Eaker's presence and apparently with his consent. Plaintiffs presented no evidence of any doubts, reservations, or conditions upon his surrender of the note. "While it is not indispensable that there should have been an actual manual transfer of the instrument from the maker to the payee, yet, to constitute a delivery it must appear that the maker in some way evinced an intention to make it an enforceable obligation against himself, according to its terms, by surrendering control over it and intentionally placing it under the power of the payee or of some third person for his use." 11 Am.Jur.2d Bills and Notes § 276 (1963). We hold the delivery sufficient.
Plaintiffs presented not one scintilla of evidence to support their claim of discharge and satisfaction through the receipt by defendants of partnership proceeds.
Plaintiffs assign as error, although their pleadings did not so allege, the exclusion of evidence which they claim if presented would tend to show that when the partnership was dissolved, the note was to have been discharged in consideration for Hewes receiving all the partnership's...
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