Tbe two decisive questions of law presented are:
1. If tbe president of a corporation executes a promissory note in tbe name of tbe corporation, payable to a bank, and delivers same to said payee at tbe request and for tbe accommodation of said payee, without *617tbe knowledge or authority of tbe officers or directors of tbe maker, can such maker in. a suit by tbe receiver of tbe payee assert failure of consideration as a valid defense to tbe action ?
2. Was sucb execution and delivery of tbe instrument an ultra, vires act?
Tbe statute, C. S., 3008, provides that failure of consideration is a valid defense to a negotiable instrument “against any person not a bolder in due course,” etc. "While, of course, there is a presumption of consideration arising from tbe execution and delivery of a sealed instrument, sucb presumption is rebuttable. Farrington v. McNeill, 174 N. C., 420, 93 S. E., 957; Patterson v. Fuller, 203 N. C., 788, 167 S. E., 74.
Tbe defendant offered evidence tending to show that tbe notes in controversy were executed and delivered by him as president of tbe defendant corporation and in tbe name of tbe corporation, at tbe request of tbe Commercial National Bank, tbe payee named in tbe notes. Tbe evidence further tended to show that tbe bank paid nothing for tbe note, and that tbe maker received no valuable consideration as contemplated by law. Consequently, if the jury should find tbe facts to be as contended by tbe defendant, tbe defense of failure of consideration would be available. Manifestly, there was competent evidence of failure of consideration to be submitted to a jury. Therefore, tbe first question of law must be answered in tbe affirmative.
Tbe second question of law depends upon pertinent facts and circumstances. If it' shall be found that tbe notes executed by tbe president of defendant corporation, not in pursuance of or as an incident of tbe corporate business, wholly without consideration, or benefit of any kind to tbe corporation, then sucb execution and delivery of tbe notes would be an ultra vires act. See Bank v. Odom, 188 N. C., 672, 125 S. E., 394; Commissioners of Brunswick v. Bank, 196 N. C., 198, 145 S. E., 227; Indemnity Co. v. Perry, 198 N. C., 286, 157 S. E., 629.
There is no allegation in tbe pleadings that tbe payment of $15.00 interest on tbe $3,000 note constituted ratification, and therefore sucb question is not pertinent to tbe case as now constituted.
Apparently tbe plaintiff relied upon tbe case of White v. Johnson, 205 N. C., 773, 172 S. E., 370. In that case, however, tbe evidence tended to show that tbe plaintiff loaned tbe defendant tbe sum of $2,000 in cash. Obviously, nothing else appearing, tbe defendant received tbe benefit of tbe contract, and tbe plea of ultra vires was, therefore, not available.
The Court concludes that there was competent evidence of a valid defense to the instruments to be considered by tbe jury; and hence tbe peremptory instructions were erroneously given.
Eeversed.