Williams v. Fowler Automobile Co., 207 N.C. 309 (1934)

Oct. 31, 1934 · Supreme Court of North Carolina

207 N.C. 309

E. H. WILLIAMS v. FOWLER AUTOMOBILE COMPANY, REXFORD WILLIS, Executor of A. R. WILLIS, HARRIET L. HYMAN, Executrix of T. G. HYMAN, aud J. V. BLADES.

(Filed 31 October, 1934.)

Bills and Notes J? b—

Tbe burden is on the holder of a negotiable note to show that notice of nonpayment was given the endorsers, and in the absence of evidence of such notice to an endorser, or to his personal representative after his death, the holder is not entitled to recover on the endorsement. C. S., 3084.

Appeal by plaintiff from Daniels, J., at January Term, 1934, of CeaveN.

No error.

This is an action to recover on six notes described in the complaint. The action was begun on 28 December, 1932.

The notes sued on were executed by the defendant Fowler Automobile Company as maker. They were endorsed before delivery to the plaintiff by A. R. Willis, T. G. Hyman and J. Y. Blades. Each of said notes was due prior to tbe commencement of this action.

Botb A. R. Willis and T. G. Hyman are dead. Tbe defendant Rex-ford Willis is tbe executor of A. R. Willis, deceased, and tbe defendant Harriet L. Hyman is tbe executrix of T. G. Hyman, deceased. Tbe defendant J. Y. Blades bas been duly adjudged a bankrupt, and bas been duly discharged of bis liability as an endorser of tbe notes sued on. Neither tbe defendant Fowler Automobile Company nor tbe defendant Rexford Willis, executor of A. R. Willis, filed an answer to tbe verified complaint.

Issues raised by tbe answer of tbe defendant Harriet L. Hyman, executrix of T. G. Hyman, were answered by tbe jury as follows:

“6. Was due notice of tbe nonpayment of tbe notes maturing on 24 March and 24 September, 1930, given to T. G. Hyman? Answer: No.’

“7. Was due notice of tbe nonpayment of tbe notes maturing on 24 March and 24 September, 1931, and 24 March and 24 September, 1932, given to defendant Harriet L. Hyman, executrix? Answer: No/

“8. What amount, if any, is plaintiff entitled to recover of tbe defendant Harriet L. Hyman, executrix? Answer: Nothing.’”

From judgment that plaintiff recover nothing of the defendant Harriet L. Hyman, executrix of T. G. Hyman, deceased, and that said defendant recover of tbe plaintiff her costs in tbe action, tbe plaintiff appealed to tbe Supreme Court, assigning errors in tbe trial.

Dunn & Dunn, L. I. Moore, and T. 0. Moore for plaintiff. .

R. A. Nunn for defendant.

Per Curiam.

In tbe absence of any evidence at tbe trial of this action tending to show that plaintiff gave due notice to T. G. Hyman of tbe nonpayment of tbe notes which matured prior to bis death, and also of any evidence tending to show that plaintiff gave due notice to bis executrix of tbe nonpayment of tbe notes which matured after bis death, there was no error in the instructions of the court to the jury with respect to tbe 6th, 7th, and 8th issues. Tbe burden of showing such notice was on tbe plaintiff. Davis v. Royall, 204 N. C., 147, 167 S. E., 559; Exchange Co. v. Bonner, 180 N. C., 20, 103 S. E., 907. The failure of the bolder of a negotiable instrument to give an endorser notice of its nonpayment, as required by statute (C. S., 3084 et seq.), discharges tbe endorser. Barber v. Absher Co., 175 N. C., 602, 96 S. E., 43; Perry v. Taylor, 148 N. C., 362, 63 S. E., 423.

We find no error in tbe trial of this action. Tbe judgment is affirmed.

No error.