Opinion
(Filed 9 November, 1932.)
Bills and Notes A a — Widow received no consideration for execution of note in this case and was not liable thereon in action by payee.
Where a husband executes a note as maker for money borrowed from the bank which note is signed by another as surety, and after the death of the husband, his widow, upon request of the surety, executes a note in like amount in substitution therefor which is also signed by the surety in the same capacity: Held, in a suit by the bank to recover the amount borrowed an instruction that if the jury believed the evidence the widow would not be liable is correct, the action being to recover the amount of the husband's indebtedness and not on the note executed by the widow, and the widow having received no consideration for the note.
APPEAL by defendant, C. M. Dickson, from Stack, J., at July Term, 1932, of ASHE. No error.
W. B. Austin for defendant, C. M. Dickson.
T. C. Bowie for defendant, Mrs. Martha J. Dickson.
This is an action to recover of the defendants the sum of $1,316, the amount of the indebtedness of G. D. Dickson, deceased, to the plaintiff, at the date of his death.
At his death, which occurred prior to 26 December, 1928, G. D. Dickson was indebted to the plaintiff, Bank of Ashe, in the sum of $1,316, for money loaned to him. This indebtedness was evidenced by seven notes aggregating the sum of $1,316, each executed by G. D. Dickson as principal and C. M. Dickson, as surety, and all payable to the plaintiff. After the death of G. D. Dickson, at the request of J. L. Dickson, who had duly qualified as his executor, and of C. M. Dickson, the defendant, Mrs. Martha J. Dickson, widow of G. D. Dickson, deceased, on 26 December, 1928, executed a note for the sum of $1,316, payable to the plaintiff and due six months after date. This note was signed by C. M. Dickson, as surety, and was delivered to the plaintiff. The defendant, Martha J. Dickson, received no consideration for this note from the plaintiff, or from any one else. This action was begun on 17 June, 1930.
Under instructions of the court, the jury answered the first issue, to wit: "In what amount, if any, is the defendant, Mrs. Martha J. Dickson, indebted to the plaintiff bank on the note sued on in their action?" "Nothing."
From judgment that plaintiff recover nothing of the defendant, Mrs. Martha J. Dickson, the defendant, C. M. Dickson, appealed to the Supreme Court.
There was no error in the instruction of the court to the jury that if the jury believed all the evidence, they should answer the first issue, "Nothing." This is not an action to recover on the note executed by the defendant, Mrs. Martha J. Dickson, widow of G. D. Dickson, but to recover of the defendants the amount of the indebtedness of G. D. Dickson to the plaintiff at his death. All the evidence was to the effect that she received no consideration for said note either before or after the death of her husband. Loan Association v. Swaim, 198 N.C. 14, 150 S.E. 668. The judgment is affirmed.
No error.