North Carolina Bank & Trust Co. Ex Rel. North Carolina Bank & Trust Co. v. Williams

Devin, J. This case was before this Court at Fall Term, 1931, on appeal by defendants from a judgment overruling their demurrer, and is reported in 201 N. C., 464. The case again came before this Court at Spring Term, 1935, on appeal by defendants from a judgment on directed verdict for the plaintiffs that the action was not barred by the statute of limitations. New trial was awarded for error in the peremptory instructions as to one or more of defendants. This is reported in 208 N. C., 243. It was stated in the last report of the case (opinion by Stacy, C. J.): “The defendant Maury Ward did not sign the resolution; nor does J. O. Williams appear to have signed it individually.” However, from the record before us now, it appears that the resolution of 21 September, 1928, was signed by both these defendants. The only question presented by this appeal is the correctness of the ruling of the court below on agreed facts that plaintiffs’ cause of action was not barred by the statute of limitations. *809 While the indemnity bond sued on appears to have been under seal, and there is some ground for plaintiffs’ contention that it was in effect an original obligation on the part of the signers, yet their relationship to the transaction here has been treated throughout as that of sureties, and the ten-year statute, C. S., 437, applies only to principals. Barnes v. Crawford, 201 N. C., 434; Welfare v. Thompson, 83 N. C., 276. This being an action on an indemnity bond, the general rule is that the cause of action would not accrue until loss or damage was sustained. 37 C. J., 838. The language of the bond is that the defendant “shall make good any loss or damage within 30 days after demand.” Demand was made 20 March, 1929. This action on the bond was begun 21 April, 1931, by the North Carolina Bank and Trust Company, the holder of the bond as collateral security for the indebtedness of the Bank of Duplin, and plaintiff, Commissioner of Banks ex rel. Bank of Duplin, the equitable owner or pledgor of the bond, was by order made party plaintiff, or was permitted to intervene, as of 25 March, 1932. This, it seems, was a continuation of the same suit. The cause of action was not changed. The statute, C. S., 547, expressly confers power to amend pleadings and process by adding names of parties when the claim is not thereby substantially changed. The court has power to make additional parties when the amendment does not change the cause of action. Mills v. Callahan, 126 N. C., 756; Martin v. Young, 85 N. C., 156; Cheatham v. Crews, 81 N. C., 343; Bullard v. Johnson, 65 N. C., 436. “A suit brought before the bar is complete will inure to the benefit of one intervening after the time when but for the commencement of the suit the claim would be barred,” when there is privity of estate or community of interest between the parties. 37 C. J., 1064. The name of one beneficially interested may be added by amendment after the statute of limitations has run. Gentile v. Philadelphia, 274 Pa., 335. But the defendants have by their own act extended the period of obligation by signing and sealing the resolution of 27 September, 1928, in which they use this language: “The said J. C. Williams, Charles Teachey, Maury Ward, D. W. Fussell, Henry Fussell, D. B. Herring, and G. W. Boney, sureties on the said indemnity bond from the Bank of Rose Hill to the Bank of Duplin, as aforesaid, hereby agree to remain bound and liable on said bond until the Bank of Duplin shall have been reimbursed for money advanced, etc.” There was no evidence that the Bank of Duplin has been reimbursed. While this resolution, so signed, was addressed to the Corporation Commission, which under the law at that time had charge of the liquidation of banks, it was passed for the purpose of taking the assets and *810 property of the Bank of Rose Hill from the Bank of Duplin and putting same into the hands of the Corporation Commission for liquidation, which the court finds was done 6 October, 1928. The agreement to remain bound was for the purpose of indemnifying the Bank of Duplin on account of the removal of the assets of the Bank of Rose Hill and to renew and continue the obligation “until the Bank of Duplin shall have been reimbursed for money advanced.” Statesville v. Jenkins, 199 N. C., 159; Barnes v. McCullers, 108 N. C., 47. The renewed indemnity obligation was clearly intended for the benefit of the Bank of Duplin, and its rights thereunder cannot be defeated by the contention that the promise to remain bound was made to another, since it was expressly stipulated it was intended for the protection of the Bank of Duplin. Glass v. Fidelity Co., 193 N. C., 769; Rector v. Lyda, 180 N. C., 577; Withers v. Poe, 167 N. C., 372. Nor was it without consideration. Institute v. Mebane, 165 N. C., 644; Cherokee County v. Meroney, 173 N. C., 653; Exum v. Lynch, 188 N. C., 392; R. R. v. Zeigler, 200 N. C., 396. We conclude that there was no error in the rulings of the able and careful judge who heard the case below, and that his findings and judgment must be Affirmed.