Opinion
June Term, 1850.
The sole purpose of the act of 1827, relating to indorsers, was to turn the conditional contract between the indorser and the holder of a bond into an unconditional one. It was not intended to charge the indorser, as if he had executed bond as a co-obligor or upon an indorsement without consideration, or to deprive him of the benefit of the statute of limitations.
APPEAL from the Superior Court of Law of BEAUFORT, at Spring Term, 1850, Bailey, J., presiding.
Biggs for plaintiff.
J. W. Bryan and J. H. Bryan for defendant.
The plaintiff declared in several counts in assumpsit, but the only question made in the bill of exceptions arises on a count charging the defendant as indorser of a bond for $652.22, executed by Littlejohn Topping and William Holland on 22 January, 1837, and payable twelve months after date to Blount. The pleas were non assumpsit and the statute of limitations.
On the trial the evidence was that about the time the bond fell due the defendant indorsed it in blank and passed it for value to Susan Jones, and that she held it until 20 November, 1845, and received various payments thereon, which reduced the sum then due thereon to $555.66; and that on that day Littlejohn Topping and the plaintiff executed a bond for the said sum of $555.66, payable to Susan Jones, which she accepted in discharge of the former, bond, and thereupon directed her agent to deliver the first bond to the said Littlejohn Topping or to the plaintiff, and the agent shortly thereafter delivered it into the hands of the plaintiff; Littlejohn Topping, the principal debtor, failed to make any payment on the second (63) bond, and on 13 August, 1847, the plaintiff discharged the same by giving Mrs. Jones a bond for the sum due, executed by himself and another person as his surety. The plaintiff then filled up Blount's blank indorsement by making it to himself, and brought the present action on 29 September, 1847.
The counsel for the plaintiff thereupon moved the court to instruct the jury that, if they believed the evidence, the plaintiff was a purchaser of the bond sued on, and had a right to fill up the indorsement in his own name, and so was entitled to recover thereon, unless the action was barred by the statute of limitations. And as to the latter point, the counsel insisted that Littlejohn Topping, by giving the bond of 20 November, 1845, in renewal of that sued on, acknowledged the latter as then constituting a subsisting liability on him, which implied a promise to pay it; and that, by such acknowledgment and promise of the principal, the case was taken out of the statute of limitations in respect to Blount, as indorser and surety. The court instructed the jury that, whether the transaction between the plaintiff and Susan Jones or her agent were a purchase of the bond or no, the defendant was protected by the statute of limitations, and that the acts of Littlejohn Topping mentioned were not sufficient to renew a liability of Blount as indorser. The jury found for the plaintiff on the first issue and for the defendant on the statute of limitations; and the plaintiff moved for a venire de novo upon the ground of misdirection, which was refused, and he appealed.
It is difficult to conceive the meaning of the proposition that, from the act of giving a new bond in (64) place of a previous one, a promise is implied by law to pay such prior bond. To whom can the promise be supposed to be made, and to what end is it to be implied, when the debtor actually gave an obligation under seal for the same money? It is somewhat surprising, therefore, that the plaintiff should have had a verdict upon any part of the case. But, without notice of that point, the Court holds the instructions and verdict upon the statute of limitations to be unquestionably correct. The contracts of the obligor and indorser are in their nature several, and no act of the former can change the latter. The act of 1827, indeed, says the indorser shall be liable as surety to the holder; and it is insisted that the alleged liability of the defendant arises under that provision. But it has been for some time settled that the sole purpose of that act was to turn the implied conditional contract, between the indorser and holder, into an unconditional one; and that it was not intended to charge the indorser, as if he had executed the bond as co-obligor, or upon an indorsement without consideration, or to deprive him of the benefit of the statute of limitations by exposing him to stale demands, kept alive, perhaps, by collusion between the obligor and the holder. Williams v. Irwin, 20 N.C. 70; Ingersoll v. Long, 20 N.C. 436. The act does not change the mode of declaring against the indorser, except in omitting the former requisites of a demand on the obligor and a notice of the dishonor to the indorser. Indeed, the count upon which it is sought to recover from the defendant charges him as indorser merely — that is, an assumpsit upon a several and simple contract; and, consequently, the case is within the express provision of the act of 1715.
PER CURIAM. Judgment affirmed.
Cited: LaDuc v. Butler, 112 N.C. 460; Barrett v. Reeves, 125 N.C. 539.
(65)