Parker v. Flora, 63 N.C. 474 (1869)

June 1869 · Supreme Court of North Carolina

63 N.C. 474

DAVID PARKER v. SUSAN FLORA.

Want, or failure of consideration, is no defence to an action upon a sealed instrument.

Debt, tried before Fool, J., at Spring Term 1869, of the Superior Court of G-ates..

The plaintiff declared on a bond at sis months, endorsed to him by one John P. Jordan. The execution of the bond was proved; and its assignment to the plaintiff for full consideration, without notice of any claim of the defendant. The defendant offered to prove that the bond sued on was executed to the plaintiff's assignor on a contract for professional services, to be rendered, and. in payment therefor; that such services were not rendered, and, therefore, that there was no consideration, or a failure of consideration.

His Honor rejected the evidence, and to this the defendant ■excepted. - Verdict and judgment for the plaintiff.- Appeal by the defendant.

No counsel for appellant.

Smith, contra.

Settle, J.

The question presented by the pleadings does not admit of an argument. We observe that the case was tried before the decisions of the last term of this Court were published,

. and we presume that the counsel for the defendant was of the opinion that the Code of Civil Procedure applied to this suit, and that defences might be introduced as counter-claims, which had heretofore been excluded. We do not intimate that the defence here attempted to be set up, would avail under the provisions of the Code; we only say that it certainly could not be entertained in the present.suit. There is no allegation of fraud in the factum, and the bond was “assigned to the plaintiff for full consideration and without notice of the claim of defendant; and we are to take it that it was assigned before it fell due.

The evidence in regard to the consideration of the bond was properly rejected by His Honor.

Per Curiam. Judgment affirmed.