Warren v. . McLawhorn

171 S.E. 355, 205 N.C. 360, 1933 N.C. LEXIS 559

• Court: Supreme Court of North Carolina
• Decided: November 1, 1933
• Status: Published

Opinion

Stacy, C. J.

The demurrers were properly overruled on authority of Buggy Co. v. Dukes, 140 N. C., 393, 52 S. E., 931, and Supply Co. v. Davis, 202 N. C., 56, 161 S. E., 734.

Plaintiff had his election to sue on the note, taken as security for the open accounts, or to return the collateral, when not paid at maturity, and sue on the original causes of action. Indeed, the exact liability of ~W. B. McLawhorn to plaintiff was not known at the time of the execution of the note, and plaintiff would not be able to recover from him more than the value of the merchandise sold and delivered, whether suit were brought on the note or resort had to actions on the open accounts.

The fear expressed by the defendant as to what his liability might have been had his note been negotiated to an innocent holder for value and before maturity is not before us for adjudication. The verdict and judgment will be upheld.

No error. •