Lee v. . Chamblee

Supreme Court of North Carolina

Lee v. . Chamblee

25 S.E.2d 433, 223 N.C. 146, 1943 N.C. LEXIS 224

CourtSupreme Court of North Carolina

DecidedMay 5, 1943

StatusPublished

Cited by4 cases

This text of 25 S.E.2d 433 (Lee v. . Chamblee) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lee v. . Chamblee, 25 S.E.2d 433, 223 N.C. 146, 1943 N.C. LEXIS 224 (N.C. 1943).

Pincite

Opinion

Stacy, C. J.

Tbe plaintiff rested her case upon offering tbe note,

which appears to be under seal, with tbe defendant and another as joint makers or joint obligors. This was sufficient to defeat tbe motion for nonsuit. Allsbrook v. Walston, 212 N. C., 225, 193 S. E., 151, and cases cited.

True, the plea of the statute of limitations cast upon the plaintiff tbe burden of showing tbat her suit was commenced within tbe requisite time from tbe accrual of tbe cause of action, or tbat otherwise it was not barred. Drinlcwater v. Tel. Co., 204 N. C., 224, 168 S. E., 410; Savage v. Gurrin, 207 N. C., 222, 176 S. E., 569. Tbe plaintiff offered in evidence a note apparently executed by tbe defendant and another as joint obligors, with tbe word “Seal” in brackets opposite tbe name of each ostensible maker. Nothing else appearing, this would repel tbe three-year statute of limitations, C. S., 441, as sealed instruments against tbe principals thereto are not barred until tbe lapse of ten years. C. S., 437; Gurrin v. Gurrin, 219 N. C., 815, 15 S. E. (2d), 279.

It is permissible to show by evidence aliunde tbat one, ostensibly a. joint promisor or obligor, is in fact a surety. Flippen v. Lindsey, 221 N. C., 30, 18 S. E. (2d), 824; Ins. 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. Glifton, 203 N. C., 483, 166 S. E., 334; Gurrin v. Gurrin, supra.

However, in tbe instant case, we are dealing with a nonsuit entered at tbe close of plaintiff’s evidence. Considered in its most favorable light, it is sufficient to carry tbe case to tbe jury.

On tbe further bearing, tbe defendant will have an opportunity to offer evidence in support of bis defense.

Reversed.

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Stacy, C. J.

Tbe plaintiff rested her case upon offering tbe note,

which appears to be under seal, with tbe defendant and another as joint makers or joint obligors. This was sufficient to defeat tbe motion for nonsuit. Allsbrook v. Walston, 212 N. C., 225, 193 S. E., 151, and cases cited.

True, the plea of the statute of limitations cast upon the plaintiff tbe burden of showing tbat her suit was commenced within tbe requisite time from tbe accrual of tbe cause of action, or tbat otherwise it was not barred. Drinlcwater v. Tel. Co., 204 N. C., 224, 168 S. E., 410; Savage v. Gurrin, 207 N. C., 222, 176 S. E., 569. Tbe plaintiff offered in evidence a note apparently executed by tbe defendant and another as joint obligors, with tbe word “Seal” in brackets opposite tbe name of each ostensible maker. Nothing else appearing, this would repel tbe three-year statute of limitations, C. S., 441, as sealed instruments against tbe principals thereto are not barred until tbe lapse of ten years. C. S., 437; Gurrin v. Gurrin, 219 N. C., 815, 15 S. E. (2d), 279.

It is permissible to show by evidence aliunde tbat one, ostensibly a. joint promisor or obligor, is in fact a surety. Flippen v. Lindsey, 221 N. C., 30, 18 S. E. (2d), 824; Ins. 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. Glifton, 203 N. C., 483, 166 S. E., 334; Gurrin v. Gurrin, supra.

However, in tbe instant case, we are dealing with a nonsuit entered at tbe close of plaintiff’s evidence. Considered in its most favorable light, it is sufficient to carry tbe case to tbe jury.

On tbe further bearing, tbe defendant will have an opportunity to offer evidence in support of bis defense.

Reversed.

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25 S.E.2d 433, 223 N.C. 146, 1943 N.C. LEXIS 224, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lee-v-chamblee-nc-1943.

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