Opinion
(September Term, 1894.)
Action on Note — Principal and Surety — Practice — Case on Appeal.
1. The service by an appellee of a countercase on appeal instead of a statement of his exceptions to appellant's case on appeal is a substantial compliance with the statute, sec. 550 of The Code.
2. Where on the trial of an action on a note (which had been assigned by the obligee to the plaintiff after maturity), one of the obligors testified that he was principal and the other obligor a surety, and that their relations were known to the payee, and the payee testified otherwise, it was error (there being a conflict of testimony) to instruct the jury that if they believed the evidence they should find that the suretyship of defendant was known to the payee at the time of signing the note.
ACTION, tried before Boykin, J., and a jury, at the July Term, 1894, of GRANVILLE, to recover an alleged balance due on a sealed promissory note executed by one B. H. Cozart and the defendant to one George B. Harris for the payment of $276.34, dated 2 April, 1883, and payable one day after its date and indorsed to plaintiff.
(189)
T. T. Hicks and A. A. Hicks for plaintiff.
Edwards Royster and J. B. Batchelor for defendant.
The appellee returned a countercase as a statement of his exceptions to appellant's case. This is often convenient, and sometimes it is the only mode in which the appellee can intelligently present his objections. The practice has always been recognized as a substantial compliance with the statute. State v. Gooch, 94 N.C. 982; Horne v. Smith, 105 N.C. 322; McDaniel v. Scurlock, at this term. The court adopted the countercase. We must, therefore, take it as the "case on appeal."
The defendant testified that he signed the note as surety, and that fact was known to the payee at the time. He then called the payee (the note having been transferred since maturity to the plaintiff), who testified that he did not know of the suretyship till after this (190) action was brought. The court instructed the jury, if they believed the evidence, to find the issue whether the suretyship of defendant was "known to the payee at the time of signing the note" in the affirmative. There being a conflict of evidence, this was error, for which there must be a
New trial.