Flippen v. . Lindsey

18 S.E.2d 824, 221 N.C. 30, 1942 N.C. LEXIS 380

• Court: Supreme Court of North Carolina
• Decided: February 25, 1942
• Status: Published

Opinion

Stacy, C. J".

We think the record evidence which tends to show the whole transaction, the relationship of the parties, their interests in the matter, and to fix the payee with notice thereof, is competent as bearing upon the defenses of want of consideration, failure of consideration, suretyship and the statute of limitations. Barnes v. Crawford, 201 N. C., 434, 160 S. E., 464.

It is permissible to show by evidence aliunde that one, ostensibly a joint promisor or obligor, is in fact a surety. Insurance Co. v. Morehead, 209 N. C., 174, 183 S. E., 606; Davis v. Alexander, 207 N. C., 417, 177 S. E., 417. The three-year statute of limitations, C. S., 441, is applicable to sureties on sealed instruments as well as on instruments not under seal. Furr v. Trull, 205 N. C., 417, 171 S. E., 641; Redmond v. Pippen, 113 N. C., 90, 18 S. E., 50; Welfare v. Thompson, 83 N. C., 276. See Trust Co. v. Clifton, 203 N. C., 483.

Of course, in an action by the personal representative of the payee in a note to enforce its collection, C. S., 1795, unless waived, would exclude evidence of personal transactions or communications between an interested party and the deceased. Stocks v. Cannon, 139 N. C., 60, 51 S. E., 802. The exclusion of the record evidence in the instant case, however, seems to have gone beyond the limitations of the “dead man’s statute,” C. S., 1795.

It appears that the defendants are entitled to a new trial. It is so ordered.

New trial.