Merchants National Bank v. Andrews

Allen, J. The introduction of a part of the answer of the defendant by the plaintiff, which made it possible for the defendant to introduce the remainder of the paragraph, and which raises the only question debatable on the appeal, was unnecessary because the defendant having admitted the execution of the notes and having pleaded as a defense the want of consideration, the burden was on him to make good the defense, and if he had declined to introduce evidence the plaintiff would have been entitled to judgment on the pleadings. This is not, however, fatal to the plaintiff, as the statement in the answer that the notes were executed without consideration, when considered in connection with the examination of the defendant, is but a mere conclusion. The defendant states no facts in the answer showing why he alleged that there was no consideration for the notes, and when he was examined, instead of swearing that they were without consideration, he states the facts connected with the transaction, and upon which he relied to show want of consideration, and these are not sufficient in our opinion to meet the burden cast upon him by the law upon the adipission of the execution of the notes. See Piner v. Brittain, 165 N. C., 401, and Rev., 2172. He says, upon his examination, “the Merchants National Bank did not pass to his credit so far as he has heard on 8 April, 1919, the sum $13,500.” Certainly not, because the defendant kept his account with the Citizens National Bank and not with the Merchants National Bank. *345 He says again, be “did not get from the bank on that day $13,500,” and again, “the Merchants National Bank did not pay to anybody at his request on 9 April, 1919, $13,500.” These statements may all be true, and still they do not prove the defense. In the first place, the defendant confines his statement to one particular day, and to the payment of the whole ainount on that day, when the money might have been paid on another day or in different amounts on different days, or the notes sued on may have been given in renewal of obligations of the defendant or of notes of the Monitor Graphite Company of which he was president, and the latter seems to have been the real transaction, because he admits that he gave checks on the Citizens National Bank payable to the Merchants National Bank on 8 April, 1919, one for $30.40, and the other for $205.20, the last amount being the discount on the two notes sued on for ninety days, and he says: “These checks were given for the payment of some papers that he had, some of his papers and some of the Monitor Graphite Company’s papers.” “He thinks the check for $30.40 was given to cover his own personal papers.” If so, the check for $205,20, the discount of the two notes in action, must have been for the Monitor Graphite Company’s papers. It is inconceivable that the defendant, educated at Chapel Hill and .Cornell, and having a degree from the latter institution which “ranks with the best in the country,” president of the Raleigh Electric Company and president of the Monitor Graphite Company, should have executed two notes aggregating $13,500 and have paid the discount on these for ninety days out of his own money when there was no consideration for the notes, and he should at least be held to swear upon his examination that there was no consideration, or state facts which would exclude the reasonable probability of a consideration, and having failed to do so he has not offered evidence rebutting the presumption raised by the admission of the execution of the notes. No error.