Topping v. Blount, 33 N.C. 62, 11 Ired. 62 (1850)

June 1850 · Supreme Court of North Carolina

33 N.C. 62, 11 Ired. 62

SAMUEL TOPPING. vs. NATHAN G. BLOUNT.

The sole purpose of the Act of 1827, relating to indorsers, was to turn the conditional contract between the indorser and the holder of a bond, into an unconditional one. It was not intended to charge the indorser, as if he had executed bond as a co-obligor, or upon an indorsement without consideration or to deprive him of the benefit of the Statute of limitations.

The cases of Williams v. Irwin, 3 Dev. ¿f Bat. 73, and IngersollY. Long, A Dev. & Bat. 293, cited and approved.

Appeal from the Superior Court of Law of Beaufort County, at the Spring Term I860, His Honor, Judge Bailey, presiding.

The plaintiff declared in several counts in assumpsit, but the only question made in the bill of exceptions arises on a count, charging the defendant as endorser of a bond for @652,22, executed by Littlejohn Topping and William Holland, on the 22 nd. of January 1837, andpayable twelve months after date to Blount. The pleas were non as*’ sumpsit and the statute of limitations.

On the trial the evidence was, that, about the time the bond fell due, the defendant endorsed it in blank and passed it for value to Susan Jones, and that she held it until the 20th day of November 1845, and received various payments thereon, which reduced the sum then due thereon to §555 66 : and that on that day Littlejohn Topping and the plaintiff executed a bond for the said sum of @555 66 payable to Susan Jones, which she accepted in discharge of the former bond, and thereupon directed her agent to deliver the first bond to the said Littlejohn Topping or to the plaintiff, and the agent shortly thereafter delivered it into the hands of the plaintiff; Littlejohn Topping, the principal debtor, failed to make any payment on the second bond, and on the 13th of August 1847 the plaintiff discharged the same by giving Mrs. Jones a bond for the sum due; executed by himself and another person as his surety. The plaintiff then filled up Blount’s blank endorsement by making it to himself, and brought the present action on the 29th of September 1847.

The counsel for the plaintiff thereupon moved the Court to instruct the jury, that, if they believed the evidence, the plaintiff was a purchaser of the bond sued on, and had a right to fill up the endorsement in his own name, and, so was entitled to recover thereon, unless the action was barred by the statute of limitations. And, as to the latter point, the counsel insisted, that Littlejohn Topping, by giving the bond of November 20th 1845, in renewal of that sued on, acknowledged the latter as then constituting a subsisting liability on him, which implied a promise to pay it; and that, by such acknowledgement and promise of the principal, the case was taken out of the statute of limitations in respect to Blount, as endorser and surety. The Court instructed the jury, that, whether the transaction between the plaintiff and Susan Jones or her agent were a purchase of the bond or not, the defendant was protected by the statute of limitations, and that the acts of Littlejohn Topping mentioned were not sufficient to renew a liability of Blount as endorser. The jury found for the plaintiff on the first issue and for the defendant on the statute of limitations ; and the plaintiff moved for a venire ele novo upon the ground of misdirection, which was refused, and he appealed.

Biggs, for plaintiff.

J. W. Bryan, and J. H. Bryan, for the defendant.

Ruffin, C. J.

It is difficult to conceive the meaning of the proposition, that, from the act of giving a new bond in place of a previous one, a promise is implied by law to pay such prior bond. To whom can the promise be supposed to be made ? and to what end is it to be implied, when the debtor actually gave an obligation under seal for the same money 1 It is somewhat suprising, therefore, that the plaintiff should have had a verdict upon any part of the case. But, without notice of that point, the Court holds the instructions and verdict upon the statute of limitations to be unquestionably correct. The contracts of the obligor and the endorser are in their nature several, and no act of the former can change the latter. The act of 1827, indeed, says the endorser shall be liable as surety to the holder; and it is insisted, that the alleged liability of the defendant arises under that provision. But it has been for some time settled, that the sole purpose of that act was to turn the implied conditional contract, between the endorser and holder, into an unconditional one; and that it was not intended to charge the endorser, as if he had executed the bond as co-obligor, or upon an endorsement without consideration, or to deprive him of the benefit of the statute of limitations, by exposing him to stale demands, kept alive, perhaps, by collusion between the obligor and the holder, Williams v. Irwin, 3 Dev. and Bat. 74. Ingersoll v. Long, 4 Dev and Bat. 293. The act does not change the mode of declaring against the endorser, except in omitting the former requisites of a demand on the obligor and a notice of the dishonor to the endorser. Indeed, the count, upon which it is sought to recover from the defendant, charges him as endorser merely — that is in assumpsit upon a several and simple contract; and, consequently,the caséis within the express provision of the act of 1715.

Per Curiam. Judgment affirmed.