CLARK, C. J., dissenting.
Defendants answered and alleged that the note sued on was given without any consideration. Second, that when same was given, the intestate was without sufficient mental capacity to execute it. On the trial, plaintiff proved the due execution of the note, in form as follows:
"April 14, 1919. One year after date, I promise to pay J. J. Jones the full and just sum of $4,000 for value received of him. Interest, five per cent. (Signed) J. W. Winstead."
Defendant offered testimony tending to show that at the time of the execution of the note the intestate was not of sufficient mental capacity to execute the note; and, second, that the same, being executory, was without valuable consideration. In support of the first position, showed among other things that intestate had been three times, at different periods, confined in the insane asylums of the State, the last
time being twelve years before the note was given, and that since his discharge on the last occasion he had never been of sound mind or of capacity to execute the note sued on.
In reply plaintiff offered evidence tending to show that since coming from the State Hospital, twelve years ago, intestate had been in control and management of his own property; that he had a large landed estate, was a good trader, rented out his property himself, and accumulated property; that the note had been executed by intestate in payment of services theretofore rendered by plaintiff to the intestate and in recognition of the claims plaintiff had upon him, and it appeared that the annual interest had been receipted for on the note as per agreement between plaintiff and intestate. The cause was submitted to the jury, and verdict rendered, as follows:
"1. Was the note sued upon executed without any consideration? Answer: `No.'
"2. Was J. W. Winstead, at the time of the execution of the note, without sufficient mental capacity to execute same? Answer: `No.'
"3. What amount is due on said note? Answer: `$4,000.'"
Judgment on the verdict, and defendants excepted and appealed, assigning errors.
The execution of the note, a negotiable instrument, having been duly proven, and same put in evidence, under our statutes and decisions applicable, there is a presumption that it was given for value, and the question of a lack of consideration is a matter of defense, the burden being upon the defendant to establish it. Piner v. Brittain, 165 N.C. 401, and authorities cited; C. S., ch. 58, secs. 3004 and 3006, etc. There is also a rebuttable presumption that the promissor was sane at the time of the execution of the note, and on that question the burden of showing the contrary, as a general rule, is upon the defendant or the person alleging it.
The court charged the jury generally in accord with these principles, submitting the opposing evidence under full and appropriate instructions, and referring to the fact of defendant's confinement in the asylums of the State, and his condition while there, as circumstances tending to establish defendant's position. Under these instructions the jury have rendered their verdict for plaintiffs, and, after careful consideration, we can find no valid reason for disturbing the results of the trial.
It is very earnestly contended by defendants that, on the entire evidence, if believed by the jury, including that of plaintiff himself, the note was without any valuable consideration, and his Honor should have so ruled, in accord with their prayer for instructions to that effect. On that question plaintiff, a witness in his own behalf, testified among other things that plaintiff, at the time of the execution of the note, and for some time prior thereto, was engaged in the sale of tobacco as employee of a warehouse company at South Boston, Va.; that intestate, owning a large body of land in this State, having numbers of tenants thereon, was in the habit of sending the tobacco grown on his farms to South Boston for sale, and not infrequently, pursuant to intestate's request, by note or otherwise, plaintiff would look after these sales and the disposition of the purchase price, following in such matters defendant's directions given him. Speaking more directly to the execution of the note and the circumstances attending its execution (admitted without objection), the witness said:
"He came over to South Boston one day, and I was busy in the office, and he came in there and told me he wanted to see me, and we went out in the warehouse and sat down on a truck, and he told me that I had been nice to him in South Boston. Lots of times he would send tobacco. Some of his tenants would come over and sometimes sell with me; and if he did not come himself, he would phone me or write me a letter and tell me what to do with the check, and sometimes he would say let one have so much and send me a check for the rest, and I always did just as he told me. He told me he appreciated what I had done for him; that Uncle Charles, who had died a few years ago, did not leave me anything, as he did some of the rest of his people, and he wanted to help me, and I had been nice to him, and he appreciated what I had done for him, and he was going to give me this note. He said, `I may pay you the money for this before I die,' but he said, `I am getting to be an old man and I do not know when I will die.' But he said, `If I die before I pay it, my estate will be worth it, and I want you to collect it.' And that is what I am trying to do. He asked me to credit the interest on this note, and he asked me to send him a receipt, and I sent him the first receipt; and he was over there some time later and asked me did I credit it on the note, and I told him I did."
Again, on cross-examination, witness testified as follows: "I was engaged in the warehouse business for somebody else. He did not sell much tobacco with me. He owned some stock in the Independent Warehouse, and I think his people sold more there than anywhere else. But he did sell some at the other warehouses. He did not sell so much tobacco with me, but if he wasn't coming himself he would usually
write me or get somebody to phone me, and he would tell me who was coming and what warehouse they were going to be at, and tell me what he wanted done — if he wanted to let them have anything, and what to do with the other."
"Q. As a matter of accommodation to him, you did as he requested? A. Yes, sir.
"Q. He did sometimes sell tobacco at your warehouse. A. Yes, sir.
"Q. Of course, when he sold tobacco at your warehouse, if he wanted you to do something with the money, you would do it? A. Yes, sir."
On this, the evidence chiefly pertinent, it is insisted for appellant that the facts only present an executory promise to make compensation for a "past consideration," and that the same does not constitute value within the meaning of the exception. It is said by Professor Page, in his valuable work on contracts: "At modern law, the term `past consideration' means that a right has been acquired of forborne, under circumstances that either never created any legal liability, to pay therefor, or if there was a legal liability originally, subsequent facts have amounted to a discharge. It does not, of course, mean that a promise may not be supported by a prior legal liability as a consideration, whether absolutely valid, voidable, or subject to some subsequent defense. It does not include cases in which the consideration is a legal liability which arose before the promise was made, and upon which the promise is based. Such forms of consideration are sufficient.
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CLARK, C. J., dissenting.
Defendants answered and alleged that the note sued on was given without any consideration. Second, that when same was given, the intestate was without sufficient mental capacity to execute it. On the trial, plaintiff proved the due execution of the note, in form as follows:
"April 14, 1919. One year after date, I promise to pay J. J. Jones the full and just sum of $4,000 for value received of him. Interest, five per cent. (Signed) J. W. Winstead."
Defendant offered testimony tending to show that at the time of the execution of the note the intestate was not of sufficient mental capacity to execute the note; and, second, that the same, being executory, was without valuable consideration. In support of the first position, showed among other things that intestate had been three times, at different periods, confined in the insane asylums of the State, the last
time being twelve years before the note was given, and that since his discharge on the last occasion he had never been of sound mind or of capacity to execute the note sued on.
In reply plaintiff offered evidence tending to show that since coming from the State Hospital, twelve years ago, intestate had been in control and management of his own property; that he had a large landed estate, was a good trader, rented out his property himself, and accumulated property; that the note had been executed by intestate in payment of services theretofore rendered by plaintiff to the intestate and in recognition of the claims plaintiff had upon him, and it appeared that the annual interest had been receipted for on the note as per agreement between plaintiff and intestate. The cause was submitted to the jury, and verdict rendered, as follows:
"1. Was the note sued upon executed without any consideration? Answer: `No.'
"2. Was J. W. Winstead, at the time of the execution of the note, without sufficient mental capacity to execute same? Answer: `No.'
"3. What amount is due on said note? Answer: `$4,000.'"
Judgment on the verdict, and defendants excepted and appealed, assigning errors.
The execution of the note, a negotiable instrument, having been duly proven, and same put in evidence, under our statutes and decisions applicable, there is a presumption that it was given for value, and the question of a lack of consideration is a matter of defense, the burden being upon the defendant to establish it. Piner v. Brittain, 165 N.C. 401, and authorities cited; C. S., ch. 58, secs. 3004 and 3006, etc. There is also a rebuttable presumption that the promissor was sane at the time of the execution of the note, and on that question the burden of showing the contrary, as a general rule, is upon the defendant or the person alleging it.
The court charged the jury generally in accord with these principles, submitting the opposing evidence under full and appropriate instructions, and referring to the fact of defendant's confinement in the asylums of the State, and his condition while there, as circumstances tending to establish defendant's position. Under these instructions the jury have rendered their verdict for plaintiffs, and, after careful consideration, we can find no valid reason for disturbing the results of the trial.
It is very earnestly contended by defendants that, on the entire evidence, if believed by the jury, including that of plaintiff himself, the note was without any valuable consideration, and his Honor should have so ruled, in accord with their prayer for instructions to that effect. On that question plaintiff, a witness in his own behalf, testified among other things that plaintiff, at the time of the execution of the note, and for some time prior thereto, was engaged in the sale of tobacco as employee of a warehouse company at South Boston, Va.; that intestate, owning a large body of land in this State, having numbers of tenants thereon, was in the habit of sending the tobacco grown on his farms to South Boston for sale, and not infrequently, pursuant to intestate's request, by note or otherwise, plaintiff would look after these sales and the disposition of the purchase price, following in such matters defendant's directions given him. Speaking more directly to the execution of the note and the circumstances attending its execution (admitted without objection), the witness said:
"He came over to South Boston one day, and I was busy in the office, and he came in there and told me he wanted to see me, and we went out in the warehouse and sat down on a truck, and he told me that I had been nice to him in South Boston. Lots of times he would send tobacco. Some of his tenants would come over and sometimes sell with me; and if he did not come himself, he would phone me or write me a letter and tell me what to do with the check, and sometimes he would say let one have so much and send me a check for the rest, and I always did just as he told me. He told me he appreciated what I had done for him; that Uncle Charles, who had died a few years ago, did not leave me anything, as he did some of the rest of his people, and he wanted to help me, and I had been nice to him, and he appreciated what I had done for him, and he was going to give me this note. He said, `I may pay you the money for this before I die,' but he said, `I am getting to be an old man and I do not know when I will die.' But he said, `If I die before I pay it, my estate will be worth it, and I want you to collect it.' And that is what I am trying to do. He asked me to credit the interest on this note, and he asked me to send him a receipt, and I sent him the first receipt; and he was over there some time later and asked me did I credit it on the note, and I told him I did."
Again, on cross-examination, witness testified as follows: "I was engaged in the warehouse business for somebody else. He did not sell much tobacco with me. He owned some stock in the Independent Warehouse, and I think his people sold more there than anywhere else. But he did sell some at the other warehouses. He did not sell so much tobacco with me, but if he wasn't coming himself he would usually
write me or get somebody to phone me, and he would tell me who was coming and what warehouse they were going to be at, and tell me what he wanted done — if he wanted to let them have anything, and what to do with the other."
"Q. As a matter of accommodation to him, you did as he requested? A. Yes, sir.
"Q. He did sometimes sell tobacco at your warehouse. A. Yes, sir.
"Q. Of course, when he sold tobacco at your warehouse, if he wanted you to do something with the money, you would do it? A. Yes, sir."
On this, the evidence chiefly pertinent, it is insisted for appellant that the facts only present an executory promise to make compensation for a "past consideration," and that the same does not constitute value within the meaning of the exception. It is said by Professor Page, in his valuable work on contracts: "At modern law, the term `past consideration' means that a right has been acquired of forborne, under circumstances that either never created any legal liability, to pay therefor, or if there was a legal liability originally, subsequent facts have amounted to a discharge. It does not, of course, mean that a promise may not be supported by a prior legal liability as a consideration, whether absolutely valid, voidable, or subject to some subsequent defense. It does not include cases in which the consideration is a legal liability which arose before the promise was made, and upon which the promise is based. Such forms of consideration are sufficient. As used in this sense, a past consideration is no consideration, at modern law, in most jurisdictions." Page on Contracts (2d Ed.), sec. 625.
It will be observed that the evidence all shows that the services in the instant case were rendered by request, and some of the old English decisions, and probably some in this country, seem to be to the effect that wherever services are done by request of another that will import a sufficient consideration. But these decisions, so far as examined, were cases where a request was necessary to create liability, and, on the facts presented, did create it; and a more careful examination of the principle as pertinent to the facts of the instant case will show, in accord with the above citation, that the question properly depends on whether the present executory promise to pay was given for services formerly rendered, and under circumstances which created a legal liability. In such case the services, though at a former time, will suffice as a valid consideration for the subsequent promise, and this in turn usually depends on whether the services were given and received without expectation of pay. In Winkler v.Killian, 141 N.C. at p. 578, the Court, in speaking to the general principle involved, said: "It is ordinarily true that where services are rendered by one person for another, which are knowingly and voluntarily accepted, without more, the law presumes that such
services are given and received in expectation of being paid for, and will imply a promise to pay what they are reasonably worth. This is a rebuttable presumption, for there is no reason why a man cannot give another a day's work as well as any other gift, if the work is done and accepted without expectation of pay."
And in one of the cases cited and relied on by defendants (Harper v.Davis, Admr., 115 Md. 349), it is held, among other things, as stated in report of case in 35 L.R.A. (N.S.), 1026: "A note given by a man to a stranger in blood, who entered his family and lived there as a daughter, having all the privileges of any member of the family, the past services, which were rendered without any intention on her part of charging for them, or on his part of making compensation for them, is without consideration, and cannot be enforced by the payee."
Considering the facts in evidence in view of these decisions and the principles they approved and illustrate, it appearing that the services were rendered by request, that they were of a kind ordinarily importing liability and that the intestate in acknowledgment of their value subsequently gave to plaintiff the note sued upon, this being a relevant circumstance showing his concept of the matter, we think it a permissible inference that the services were not given and accepted as a gratuity, but under circumstances that established a legal and enforceable liability which required that the case be submitted to the jury, and the court could not have instructed the jury, as requested, that no valuable consideration had been shown.
Defendants except further that, it having been made to appear that the intestate had been confined on three different occasions in the asylums for the insane, the court should have instructed the jury that there was a presumption that the conditions then presented were presumed to continue, whereas these facts were only submitted as circumstances tending to show insanity. It might be a sufficient answer to this exception that there was no prayer for instruction as a basis for this exception, but on the record we are of opinion that the same could not have been properly given. It is true that when insanity has been shown to exist as an habitual or permanent condition there may arise a rebuttable presumption that the same will continue, but the position, in our opinion, does not apply here, because the evidence does not establish the requisite data, and because the fact in question, occurring twelve years after the intestate's last discharge from the asylum, is too remote for a proper application of the principle referred to, and more especially when there are facts in evidence tending to show further that since his last discharge the intestate has exercised general supervision and control of his business affairs and been successful in their management. Hudson v. Hudson, 144 N.C. 449-454; Lawson on Presumptive Evidence, 227.
Nor is there any valid objection for inadequacy of consideration, in the absence of any allegation or evidence of fraud or imposition vitiating the contract. Institute v. Mebane, 165 N.C. 644-650; 6 R. C. L., title Contracts, sec. 85.
On consideration of the entire record, we are of opinion that no reversible error has been shown, and the judgment is therefore affirmed.
No error.