Garren v. . Youngblood

Clarkson, J. At the close of plaintiff’s evidence and at the close of all the evidence the defendant made motions in the court below for judgment as in case of nonsuit, C. S., 567. The court below overruled these motions and in this we can see no error. Upon a motion as of nonsuit, all the evidence, whether offered by the plaintiff or elicited from defendant’s witnesses, is to be considered in the light most favorable to the plaintiff, and he is entitled to every reasonable intendment thereon and every reasonable inference therefrom. We think the evidence sufficient to be submitted to the jury. The main question presented for our determination: Was the promise an original one upon sufficient consideration, which made defendant liable to plaintiff, or was it such that under the statute of frauds, C. S., 987, it had to be in writing? We think the promise an original one and upon sufficient consideration. In Handle Co. v. Plumbing Co., 171 N. C., 495 (501-502), speaking to the subject: “This being so, the promise, if made as alleged, was not within the statute of frauds, but it was an original promise founded upon a distinct consideration moving to the plaintiff at the time, and was not simply collateral and superadded to that of Wooten & Eenigar to pay the debt. Our case falls within the principle stated in Dale v. Lumber Co., 152 N. C., 651, where the matter is clearly stated by Justice H ohe, who, quoting from the well-considered case of Emerson v. Slater, 63 U. S., 28, at p. 43, said: ‘Whenever the main purpose and object of the promisor is not to answer for another, but to subserve some pecuniary or business purpose of his own, involving either a benefit to himself or damage to the other contracting party, his promise is not within the statute, although it may be in form a promise to pay the debt of another, and although the performance of it may incidentally have the effect of extinguishing that liability.’ ” This position has been sustained and applied in other cases of the same Court, notably in Davis v. Patrick, 141 U. S., 479, in which it was held: “In determining whether an alleged promise is or is not, a promise to answer for the debt of another, the following rules may be applied: (1) If the promisor is a stranger to the *90 transaction, without interest in it, the obligations of the statute are to be strictly upheld; (2) but if he has a personal, immediate, and pecuniary interest in a transaction in which a third party is the original obligor, the courts will give effect to the promise. The real character of a promise does not depend altogether upon form of expression, but largely upon the situation of the parties, and upon whether they understood it to- be a collateral or direct promise.” (Italics ours.) Mercantile Co. v. Bryant, 186 N. C., 551; Jennings v. Keel, 196 N. C., 675; Dillard v. Walker, 204 N. C., 16 (20). We do not think that the agreement of the plaintiff that the bank could continue to operate was inconsistent with her right of action on defendant’s promise to her, so as to estop her. When she went to withdraw her money she had the direct promise of defendant to insure her money, that it was safe, the bank sound, the money was all right, and she trusted him. We see no reason why filing her claim on the bank would have the effect to release defendant. It was to his interest that she reduce her claim on him by obtaining what dividends she could from the bank, and acting as a prudent person would do under the circumstances. The plaintiff alleged in her complaint, in part: “That on or about 20 November, 1930, the defendant B. II. Youngblood, whom this plaintiff had known for a long period of time, and in whom she had the utmost confidence, and who she knew to be a director and officer in said bank, having ascertained that plaintiff intended to withdraw her funds from said bank, urged the plaintiff that she allow her funds to remain in said bank, and then and there assured the said plaintiff that the said bank was solvent and guaranteed to the said plaintiff that the said bank was solvent and that he would see that she suffered no loss, and that plaintiff, although she had definitely decided to withdraw her funds from said bank, relying solely upon the assurances, promises, representations and guarantees of the said bank, decided to allow her funds to remain in said bank and did allow them to remain in said bank, said funds being in the amount of $1,520.59, as the proximate result of which the plaintiff has suffered a total loss of the said sum of $1,520.59,” etc. It is contended by the defendant, in part: “That he did not owe plaintiff anything, but, according to the plaintiff’s evidence, insured her against loss. In other words, if he were a guarantor he became liable upon default of the bank, but not until after the plaintiff had exhausted her remedy against the bank.” We think that the language in the complaint and the evidence sufficient to support the verdict. In Jenkins v. Wilkinson, 107 N. C., 707 (709), it is said: “There is a plain distinction between a guaranty of payment and a guaranty of collection. 'The former is an absolute prom *91 ise to pay tbe debt at maturity, if not paid by the principal debtor, and the guarantee may begin an action against the guarantor. The latter is a promise to pay the debt upon the condition that the guarantee shall diligently prosecute the principal debtor without success.’ Jones v. Ashford, 79 N. C., 173; Baylie’s Sureties and Guarantors, 113.” Trust Co. v. Godwin, 190 N. C., 512; Trust Co. v. Clifton, 203 N. C., 483 (485). 5)We think, on plaintiff’s evidence, that this is a guarantee of payment, and under the facts and circumstances of this case plaintiff’s right of action had accrued when she instituted the suit. The charge of the court below gave the contentions of both parties fairly. In fact, gave four long contentions and fifth, a requested charge, as a matter of law, in the language prepared by defendant. There is no exception by defendant in the record to the charge as given. The exceptions and assignments of error to this Court are to the effect that the court below in its charge failed to define guaranty and what was necessary to constitute insolvency. We think, taking the charge as a whole, the defendant’s alleged contract with plaintiff was fully set forth and explained by the court below and the question of insolvency fully considered, if that issue was material to the determination of the case. The defendant, if it desired more full and specific instructions, should have asked for them. Davis v. Long, 189 N. C., 129 (137). We think in the charge, all the substantive, material and essential questions of law arising on the facts to determine the controversy were fully set forth by the court below. Moss v. Brown, 199 N. C., 189. The question was one mainly of fact, for the jury. It has found with plaintiff; in law we find No error.