Washington Horse Exchange Co. v. Bonner

103 S.E. 907, 180 N.C. 20, 1920 N.C. LEXIS 6

• Court: Supreme Court of North Carolina
• Decided: September 15, 1920
• Status: Published

Opinion

AlleN, J.

It is conceded, that the charge excepted to does not state the law correctly, and that the burden was on the plaintiff to prove notice of dishonor, or that the notice had been waived (Perry v. Taylor, 148 N. C., 362), but the plaintiff insists that the error was caused by the conduct of the defendant, in that he had substantially requested the court to so charge, and that, therefore, the defendant cannot take advantage of the error.

It is true that a party cannot except to an instruction given at his request (Kelly v. Traction Co., 132 N. C., 374), but an examination of the instruction given shows that it goes beyond the position taken by the defendant.

The defendant assumed the burden of showing that he did not receive notice, but not that there was no waiver of notice, and the charge places on him the burden of showing both, and in this we are of opinion there is substantial error against the defendant.

The letter which was introduced in evidence by the plaintiff, and to which, the defendant excepted, was, we think, competent as tending to corroborate the evidence of the plaintiff that the defendant agreed to collect the note, which would be material on the issue of waiver of notice, as the principle is well established that there may be a waiver of notice before or after maturity of the instrument.

Eor the error pointed out there must be a

New trial.

BeowN, J., not sitting.