Bank of Ashe v. Dickson, 203 N.C. 500 (1932)

Nov. 9, 1932 · Supreme Court of North Carolina

203 N.C. 500

BANK OF ASHE v. J. L. DICKSON, Executor of D. D. DICKSON, Deceased, MRS. MARTHA J. DICKSON, and C. M. DICKSON.

(Filed 9 November, 1932.)

Bills and Notes A a — Widow received no consideration for execution of note in this case and was not liable thereon in action hy payee.

Where a husband executes a note as maker for money borrowed from the bank which note is signed by another as surety, and after the death of the husband, his widow, upon request of the surety, executes a note in like amount in substitution therefor which is also signed by the surety in the same capacity: Held, in a suit by the bank to recover the amount borrowed an instruction that if the jury believed the evidence the widow would not be liable is correct, tbe action being to recover tbe amount of the husband’s indebtedness and not on tbe note executed by tbe widow, and the widow having received no consideration for tbe note.

Appeal by defendant, C. M. Dickson, from Stack, J., at July Term, 1932, of Ashe.

No error.

This is an action to recover of the defendants the sum of $1,316, the amount of the indebtedness of G. D. Dickson, deceased, to the plaintiff, at the date of his death.

At bis death, which occurred prior to 26 December, 1928, G. D. Dickson was indebted to the plaintiff, Bank of Ashe, in the sum of $1,316, for money loaned to him. This indebtedness ivas evidenced by seven notes aggregating the sum of $1,316, each executed by G. D. Dickson as principal and C. M. Dickson, as surety, and all payable to tbe plaintiff. After tbe death of G. D. Dickson, at tbe request of J. L. Dickson, who bad duly qualified as bis executor, and of O. M. Dickson, tbe defendant, Mrs. Martha J. Dickson, widow of G. D. Dickson, deceased, on 26 December, 1928, executed a note for tbe sum of $1,316, payable to tbe plaintiff and due six months after date. This note was signed by G. M. Dickson, as surety, and was delivered to tbe plaintiff. Tbe defendant, Martha J. Dickson, received no consideration for this note from tbe plaintiff, or from any one else. This action was begun on 17 June, 1930.

Under instructions of tbe court, tbe jury answered tbe first issue, to wit: “In what amount, if any, is tbe defendant, Mrs. Martha J. Dickson, indebted to tbe plaintiff bank on tbe note sued on in their action?” “Nothing.”

From judgment that plaintiff recover nothing of tbe defendant, Mrs. Martha J. Dickson, tbe defendant, O. M. Dickson, appealed to tbe Supreme Court.

W. B. Austin for defendant, 0. M. Dickson.

T. G. Bowie for defendant, Mrs. Martha J. Dickson.

Per Curiam.

There was no error in the instruction of the court to the jury that if the jury believed all the evidence, they should answer the first issue, “Nothing.” This is not an action to recover on the note executed by the defendant, Mrs. Martha J. Dickson, widow of G. D. Dickson, but to recover of the defendants the amount of the indebtedness of G. D. Dickson to the plaintiff at bis death. All the evidence was to the effect that she received no consideration for said note either before or after the death of her husband. Loan Association v. Swaim, 198 N. C., 14, 150 S. E., 668. Tbe judgment is affirmed.

No error.