Bank v. Carr, 130 N.C. 479 (1902)

June 13, 1902 · Supreme Court of North Carolina
130 N.C. 479


(Filed June 13, 1902.)

1. NEGOTIABLE INSTRUMENTS — Payee—Endorsers—Mahers.

The owner of a promissory note, endorsed by the payee for the accommodation of the maker, may sue any one of the endorsers without joining the maker or any other endorser.


A promissory note made in another State need not be protested before the owner may sue an endorser, there being no evidence that this is required' in the State where the note was executed.

S. DEPOSITIONS — Evidence.

It is not error to take deposition in place of business of one of the parties if such place is named in the notice and there is no suggestion that the other party suffered any prejudice thereby.

4. DEPOSITIONS — Leading Questions — Evidence.

It is discretionary with the trial judge whether or not answers to leading questions shall be stricken out of deposition.

Aotiow by State Bank of Chicago against J. S. Carr, heard by Judge Walter H. Neal and a jury, at January Term, 1902, of the Superior Court of Durham County. Erom a judgment for the plaintiff, the defendant appealed.

Manning & Foushee, for the plaintiff.

Guthrie & Guthrie, for the defendant.

*480Clark, J.

It was not error to refuse to submit the issue ■ tendered, whether the defendant was accommodation endorser and surety. That inquiry should have no bearing in this action, for the plaintiff could sue any endorser without joining the maker or other endorser. Bank v. Carr, 121 N. C., 113 ; Moore v. Carr, 123 N. C., 426; Bank v. Lumber Co., 123 N. C., 26; and as there is only one defendant, the principle in Parrish v. Graham, 129 N. C., 230, does not apply, for that was an adjustment of the rights of defendants as between themselves, as provided by The Code, Sec. 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 endorser. 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., 798), 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 ten years previous doing business under the previous charter of 1891; that from its first organization he had been connected with it; that it had regularly paid taxes as a bank, had never been dissolved, and was still *481doing business as a bank. This witness- also- appended to bis deposition a copy, as be testified, of tbe minutes of tbe meeting at wbicb tbe plaintiff bank organized under said charter, of which meeting said witness was secretary, and said minutes contained a copy, under seal, of tbe original charter of 1891. This evidence was uncontradicted, and was sufficient to justify tbe Court in charging that if tbe jury believed tbe evidence, to find tbe first issue, “Was tbe plaintiff a corporation duly organized and existing and acting under tbe laws of Illinois ?” in tbe affirmative. There was certainly primet facie, evidence at least of tbe corporate existence of tbe plaintiff.

Exception 6 is because tbe deposition's were taken at the banking-house of tbe plaintiff, in which tbe witnesses were employees-, but that was tbe place named in tbe notice, and it is not suggested that tbe defendant suffered any prejudice thereby. There was no error in refusing tbe motion to quash on that ground.

Tbe other exceptions are for refusal of tbe Court to strike out answers to certain questions in tbe deposition, because they were leading. This, like tbe permission to- put leading questions to a witness before tbe jury, is a matter of discretion in tbe trial Judge (Ducker v. Whitson, 112 N. C., 50),. and we do not see that tbe defendant has in anywise been injured by tbe form of these questions.

No Error.