Turner v. Templeton, 204 N.C. 784 (1933)

March 29, 1933 · Supreme Court of North Carolina

204 N.C. 784

N. F. TURNER v. J. M. TEMPLETON, Jr., and A. J. TEMPLETON.

(Filed 29 March, 1933.)

Bills and Notes H lb—

In an action on a note a demurrer interposed on the ground that defendant was an endorser and the complaint failed to allege that he was given written notice of dishonor is properly overruled where the complaint alleges facts sufficient to show a waiver of notice.

Appeal by defendant, A. J. Templeton, from Sinclair, J., at November Term, 1932, of Ware.

Affirmed.

This is an action on a note payable to the order of the plaintiff, and executed by the defendant, J. M. Templeton, Jr., as maker, and the defendant, A. J. Templeton, as endorser.

From judgment overruling his demurrer to the complaint, the defendant, A. J. Templeton, appealed to the Supreme Court.

J. Spencer Stell for plaintiff.

B. L. McMillan for defendant.

Per Curiam.

It appears from the complaint that the note sued on was dated 2 April, 1929, and was due ninety days after its date. This action was begun on 16 March, 1931.

The demurrer to the complaint on the ground that it is not alleged therein that notice in writing was given to the defendant of the dishonor of the note by its nonpayment at maturity, was properly overruled. Sufficient facts are alleged in the amended complaint to show that there was a waiver of notice by the defendant both express and implied, if upon all the facts alleged in the complaint defendant was liable only as an endorser, and, therefore, entitled to notice. C. S., 3091.

Affirmed.