Wooten v. . Bell

OlaeksoN, J. Tbe plaintiff sued defendant for tbe recovery of $750, and interest due by note made by defendant to her. Tbe defendant .ad *656 mitted tbe execution o£ tbe note and plead payment. Tbe defendant set up tbe further defense, “That plaintiff with a view to evade payment of taxes failed to cause to be listed for taxation tbe note in question and pay taxes thereon. (This amendment allowed and made in progress of tbe trial.) Tbe defendant’s first exception and assignment of error was to tbe effect that tbe Court erred in permitting tbe witness, A. T. "Wooten, to give evidence relative to tbe note, tbe subject of the action. Tbe defendant demanded that tbe plaintiff produce tbe note on which tbe action was based. Tbe defendant contended tba.t the note bad been paid, delivered to him and destroyed, relying upon O. S., 3055. We cannot sustain tbe defendant’s contention. C. S., 3055, is as follows: “Tbe instrument must be exhibited to tbe person from whom payment is demanded, and, when it is paid, must be delivered up to tbe party paying it.” Ordinarily this must be done, but not so when tbe instrument is lost or destroyed. Tbe defendant having admitted tbe execution of tbe note and plead payment, tbe burden was on the defendant to prove payment. Collins v. Vandiford, ante, at p. 239. Tbe defendant testified: “I walked over there and asked Mr. Graham was tbe note in tbe bank, and be said ‘Yes’; and I paid Mr. Graham, and I am satisfied be gave me tbe note, and I think I walked out and tore it to pieces and threw it in the street.” Plaintiff’s evidence was to tbe effect that tbe note bad not been paid, but was lost, and for that reason could mot be produced on tbe trial, further, that diligent search bad been made for tbe note. Mahoney v. Osborne, 189 N. C., 445; Bank v. Brickhouse, 193 N. C., 231. Speaking to tbe subject in 3 R. C. L., under Bills and Notes, etc., sec. 568-569, p. 1336, is tbe following: “Tbe general rule is, that where a writing is merely tbe evidence of a contract, its loss or destruction does not destroy tbe cause of action, but renders secondary evidence admissible. Where, however, from tbe nature of tbe contract, tbe party answerable on it is entitled to have tbe writing delivered up to him, for bis security, or to enable him to enforce bis rights under it, when be is called on to perform it, as in tbe case of a negotiable bill or note, if it is lost or destroyed, an action is not maintainable on it, unless bis rights can be fully secured by a bond of indemnity or other sufficient security.” Shields v. Whitaker, 82 N. C., at p. 518; Fisher v. Webb, 84 N. C., at p. 48; Insurance Co. v. Gavin, 187 N. C., p. 14. This Court has held that recovery can be bad upon a lost or destroyed note, and upon satisfactory evidence of tbe fact the witness can testify as to tbe note itself. Many cases in this connection suggest tbe propriety of requiring a bond of tbe plaintiff to protect tbe maker of tbe *657 lost or destroyed instrument. In tbis case tbe defendant requested no sucb bond and tbe judge did not require it of bis own motion. In fact, defendant testified tbat be “tore it to pieces and threw it in tbe street.” Tbe defendant’s second exception and assignment of error was to tbe effect tbat tbe jury baying answered tbe third issue “Yes,” tbat defendant was entitled to judgment and tendered same, which tbe court below refused to sign. In tbis we think there was no error. To sustain tbis contention defendant relied on tbe following act : “If any person shall, with a view to evade tbe payment of taxes, fail or refuse to give in to tbe assessing officer any bonds, notes, claims, or other evidence of debt which are subject to- assessment and taxation under tbis act, tbe same shall not be recoverable at law or suit in equity before any of tbe courts of tbis State until they have been listed and tbe tax paid thereon, together with any and all penalties prescribed by law for tbe nonpayment of taxes.” Public Laws 1927, cb. 71, sec. 64, under (24) at p. 145. Before rendering judgment tbe court below allowed plaintiff to list tbe note for tbe tax and pay tbe tax and penalty. We think, under tbe above statute, tbe court below bad tbis power and allowed no recovery until tbe tax and penalty was paid. In Hyatt v. Holloman, 168 N. C., at p. 388, it is said: “We have said in Martin v. Knight, 147 N. C., 564, tbat a failure to list a solvent credit pursuant to tbe statute does not prevent recovery in an action thereon, but postpones tbe recovery of judgment until it is listed and tbe taxes are paid.” In Corey v. Hooker, 171 N. C., at p. 232, it is said: “In any event, defendants would have tbe right to pay tbe taxes into court, as they have offered to do if liable therefor.” Forfeitures are not favored either at law or in equity, and courts are inclined to construe an act of tbis kind so as to prevent a forfeiture. We think tbe evidence on tbe first issue sufficient to be submitted to tbe wry- No error.