Moose v. . Crowell

61 S.E. 524, 147 N.C. 551, 1908 N.C. LEXIS 96

• Court: Supreme Court of North Carolina
• Decided: May 6, 1908
• Status: Published

Opinion

Clake, C. J.

Action on a bond alleged to have been executed by defendant’s intestate. Slie could not write. Non est factum was pleaded. There was evidence by several wit-nessés that she said that the note was hers, that she said her son, Henry, wrote the note for her, and that she had been seen to make payments on it and direct credits therefor to be entered on the bond.

The only defense relied on is that, this being a bond, there was not sufficient evidence to go to the jury to prove that it was “signed, sealed and delivered” by the obligor or by her authority. Wester v. Bailey, 118 N. C., 193, held that it was sufficient if the party afterwards acknowledged it as his bond, for the acknowledgment, if believed, is of execution, including delivery, and the seal imports consideration. Angier v. Howard, 94 N. C., 27. This subsequent acknowledgment. here was express and accompanied by repeated payments for a long series of years, and duly entered as credits on the bond by the intestate’s direction. This distinguishes this case from McKee v. Hicks, 13 N. C., 379, and Kime v. Brooks, 31 N. C., 218, which are relied on by the defendant. In refusing the motion for nonsuit there was

No Error.