Davis v. . Royall

BbogdeN, J. The trial judge instructed the jury as follows: “The plaintiff having offered the note, and its execution and endorsement being admitted, nothing else appearing, nothing having been paid on the note, the plaintiff would be entitled to have you answer the issue $2,000 and interest, and it would then be incumbent upon the defendant to show that the plaintiff would not be entitled to recover for the reason that the plaintiff failed to give him notice of dishonor in accordance with the statute. If he has so satisfied you by the greater weight of evidence, you will say, ‘Nothing.’ ” The defendant asserts that the foregoing instruction is erroneous for that the burden of showing notice of dishonor was placed upon the defendant. The contention of the defendant is upheld by the decision in Exchange Co. v. Bonner, 180 N. C., 20, 103 S. E., 901. See, also, Busbee v. Creech, 192 N. C., 499, 135 S. E., 326, and Pittman v. Bell, 196 N. C., 805. Nevertheless, plaintiff insists that the defendant was not entitled, to notice as a matter of law for the reason that he consented to the exten *149 sion of time of payment granted principal. There is no waiver of notice in tbe face of tbe instrument and it does not appear whether the interest was paid in advance. It does appear that interest was paid on 26 January, 1931, at a time when the defendant, Royall, had nothing to do with the mill and knew nothing of such payment. The principle announced in Bank v. Johnston, 169 N. C., 526, 86 S. E., 360, is applicable in proper cases, but the evidence in the record is not of such definite character as to enable this Court to declare as a matter of law that the defendant was not entitled to notice of dishonor as provided in C. S., 3071, 3085, and 3055. Wrenn v. Cotton Mills, 198 N. C., 89, 150 S. E., 676; Corporation Commission v. Wilkinson, 201 N. C., 344. New trial.