Federal Reserve Bank of Richmond v. Atmore

CoNNOB, J. The defendant admits in his answer the execution and endorsement by him of each of the notes sued on in this action. He alleges that he executed and endorsed the note for $5,000, for the accommodation of the First National Bank of New Bern, N. C., and that he received no value for said note from said bank. C. S., 3009. It is alleged in the complaint that this note was negotiated by the First National Bank of New Bern, N. C., to the plaintiff. The defendant admits in his answer, that he received value for the note for $2,000, from the payee, the First National Bank of New Bern, N. C. He alleges, however, that he has a set-off or counterclaim against the First National Bank of New Bern, N. C., with respect to said note. It is alleged in the complaint that this note was negotiated by the First National Bank of New Bern, N. O., to the plaintiff. Neither of the defenses alleged in the answer will avail defendant in this action if, as alleged in the complaint, the plaintiff is the holder in due course, and for value, of each of said notes. O. S., 3033, 3038. If, however, it is shown at the trial of the action, that defendant *439 executed and endorsed tbe note for $5,000, for tbe accommodation of tbe First National Bank of New Bern, N. 0., and received no value from said bank for said note; or if it is shown at tbe trial tbat defendant bas a valid offset or counterclaim against tbe First National Bank of New Bern, N. 0., witb respect to tbe note for $2,000, then, in either case, tbe burden will be on plaintiff to prove, as alleged in tbe complaint, tbat plaintiff is tbe bolder in due course, and for value of said notes, or of either of them. C. S., 3040. Whitman v. York, 192 N. C., 87, 133 S. E., 427. Otherwise, each of said notes, although held by tbe plaintiff at tbe commencement of this action, as tbe result of its negotiation to plaintiff by tbe First National Bank of New Bern, N. O., is subject to tbe same defenses as are available to tbe defendant against said bank. C. S., 3039. Whitman v. York, supra. Defendants’ answer, after tbe matters alleged therein have been stricken therefrom, as irrelevant and immaterial, is sufficient to raise issues both of law and of fact, involving tbe right of plaintiff to recover in this action, as tbe bolder in due course of tbe notes sued on. Tbe matters stricken from tbe answer are at least irrelevant and immaterial. Tbe order striking said matters from tbe answer does not deprive defendant of any substantial right or defense at tbe trial of tbe action founded upon bis equities against tbe First National Bank of New Bern, N. C. Plaintiff’s motion was made in apt time. C. S., 537. * It was not addressed to tbe discretion of tbe Court, but was made as a matter of right. Hosiery Mill v. Hosiery Mills, 198 N. C., 596, 152 S. E., 794. Tbe order was therefore subject to review by this Court on defendants’ appeal. However, there was no error in tbe order, and it is therefore affirmed. Tbe validity of tbe order made in this action by Judge Small, at November Term, 1930, of tbe Superior Court of Craven County, directing tbat tbe receiver of tbe First National Bank of New Bern be made a party defendant to this action, is not involved in this appeal by tbe defendant from tbe order made at January Term, 1931. Plaintiff excepted to tbe order making tbe receiver a party, but bas not appealed from said order. We therefore do not pass upon tbe question discussed in tbe brief of plaintiff, as appellee on this appeal, as to tbe effect of tbe order at January Term, 1931, upon tbe order of November Term, 1930. Tbe order involved in this appeal is Affirmed.