Hertford Banking Co. v. Stokes

DeNny, J. The plaintiff presents for our consideration seventeen exceptive assignments of error. However, a proper disposition of this appeal involves only a consideration of the sixteenth exceptive assignment, which was entered to his Honor’s ruling in sustaining the motion by the defendants for judgment as of nonsuit. The plaintiff is seeking to hold the defendants as principal obligors on the aforesaid notes, under and by virtue of the authority contained in the resolution of the Board of Directors of White & Company, Inc. It appears of record that prior to the execution of the notes set forth herein, J. P. Perry and II. C. Stokes endorsed the notes executed to the plaintiff and that the notes now held by the plaintiff are renewals thereof. However, there is no evidence to support the contention of the plaintiff that Perry and Stokes, on behalf of themselves and the.other defendants, signed any notes for White & Company, Inc., as principals, pursuant to the authority contained in the resolution of the directors of said company. Hence, we need not consider what the liability of these defendants might have been if Stokes had executed these notes under seal, as a principal obligor. We are concerned only with the facts as they exist and Stokes *86 signed the notes as an endorser and purported to do so under seal. Irrespective of 'his power to bind the other directors, under the provisions contained in the resolution, we hold that he did not bind them to any greater liability than he himself assumed, which was that of an endorser. G. S., 25-69 (C. S., 3044); Waddell v. Hood, Comr. of Banks, 207 N. C., 250, 176 S. E., 558; Trust Co. v. York, 199 N. C., 624, 155 S. E., 263; Dillard v. Mercantile Co., 190 N. C., 225, 129 S. E., 598. An action on a note under seal against an endorser on the note is ordinarily barred after three years from the maturity of the note. G. S., 1-52 (C. S., 441); Howard v. White, 215 N. C., 130, 1 S. E. (2d), 356; Nance v. Hulin, 192 N. C., 665, 148 S. E., 38. Likewise, the three-year statute of limitations is applicable to an action against an endorser, even though the endorsement is under seal. Howard v. White, supra. Certain payments were made on the notes sued upon by some of the defendants; however, the last of these payments were made and credited on 4 October, 1933. Small payments by White & Company, Inc., were made and credited on the notes in 1937, 1938 and 1939; these payments, however, did not stop the running of the statute of limitations in favor of the defendants. Nance v. Hulin, supra; Barber v. Absher Co., 175 N. C., 602, 96 S. E., 43. Conceding that the defendants are liable as endorsers on these notes, more than three years elapsed after 4 October, 1933, before the institution of this action, hence the action is barred by the three-year statute of limitations. His Honor properly sustained the motion of the defendants for judgment as of nonsuit, and the judgment of the court below is Affirmed.