Newland v. Moore, 173 N.C. 728 (1917)

May 16, 1917 · Supreme Court of North Carolina

173 N.C. 728

W. C. NEWLAND and A. A. KENT, Administrators of D. M. PRUITT, v. F. P. MOORE et al.

(Filed 16 May, 1917.)

1, Bills and Notes — Non Negotiable Instruments — Notice of Dishonor.

A note not payable to order or bearer is not a negotiable paper, and an indorser thereon is not entitled to notice of dishonor.

3. Same — Peremptory Instructions.

Where in an action against an indorser of a nonnegotiable paper the ownership thereof has not been put at issue, its execution is admitted and the only defense relied on was the failure to give notice of dishonor, an instruction to answer the issue for plaintiff, if the jury believed the evidence, is correct.

Civil action-, tried before Garter, J., at February Term, 1917, of Caldwell.

' This is an action on a note for $100,000, payable to D. M. Puett.

The plaintiff alleged the death of D. M. Puett and the qualification of the plaintiffs as his administrators, the execution of the note by the defendant F. P. Moore as a maker, and by the defendants W. C. Moore and W..C. Moore, Jr., as indorsers.

The defendant W. O. Moore, Jr., against whom alone the action was tried, the other defendants having been discharged in bankruptcy, admitted tlie execution of the note and his indorsement, the death of Puett and the qualification of the plaintiffs as administrators, and the only-defense set up is that no notice of the nonpayment and dishonor of the note was given to him.

At the conclusion of the evidence the defendant moved for judgment of nonsuit, which was refused, and defendant excepted.

His Honor instructed the jury to answer the issue in favor of the plaintiffs of they believed the evidence.

There was a verdict and judgment in favor of the plaintiffs, and the defendant appealed.

Squires & Whisnant and Thomas E. Calvert for defendant.

M. N. Earshaw and Edmund Jones for plaintiff.

Per Curiam.

If the ownership of the note had been put in issue it may be that the defendant would have ground of complaint as to the peremptory instruction given to the jury, but no- issue of this character is raised by the pleadings, and the defendant relies on the failure to give him notice, as indorser, of the dishonor of the note.

The note is nonnegotiable, because not payable to order or bearer, and being nonnegotiable, the defendant was not entitled to notice. Johnson v. Lassiter, 155 N. C., 50; 8 C. J., 635; 3 R. C. L., 1220.

No error.