Mitchell v. Rothwell

HEDRICK, Chief Judge. Defendant first assigns error to the trial judge’s refusal to submit to the jury an issue of conditional delivery of the demand promissory note and to instruct the jury thereon. Defendant argues the evidence, when considered in the light most favorable to him, was sufficient to raise an inference that the $300,000.00 note in question was delivered to plaintiffs on condition that it would be destroyed or rendered invalid if defendant was unsuccessful in getting his wife to execute the deed of trust to secure the other promissory note. Resolution of the question presented requires a careful analysis of the evidence to determine whether any construction of the evidence presented does in fact raise a reasonable inference that the demand note was delivered conditionally. The burden is on defendant to offer evidence tending to show non-liability on the note “and if the testimony on that point, [464] considered in the light most favorable for him, afforded any competent evidence in support of his contention, he was entitled to have it submitted to the jury with appropriate instructions from the court as to all material phases of the case presented by such evidence.” Perry v. Trust Co., 226 N.C. 667, 670, 40 S.E. 2d 116, 118 (1946). Defendant argues the following testimony elicited at trial is sufficient to raise an issue of conditional delivery: As to whether when I signed the promissory note here, I intended to be personally obligated to the amount of $300,000.00 on the note, that promissory note was signed to cover the time that it would take me to go to Charlotte and get my wife to sign the deed of trust and to execute the deed of trust so that it would go to Keller, and that was conditioned on the other. As to what was going to happen if I did not get the secured note, if I were successful in getting my wife to sign the deed of trust, then that promissory note would have been discarded. As to what was going to happen to the promissory note if I didn’t get my wife to sign it, then there was no validity to either document. It was going to be discarded again. This evidence does not prove any condition precedent to defendant’s liability on the demand note. This evidence leads to the conclusion that the promissory note was not to be considered valid under any set of circumstances. Regardless of whether defendant procured his wife’s signature, the note was to be “discarded,” and defendant would not be liable. We hold no construction of the evidence raises an inference of conditional delivery of the demand promissory note. Defendant next contends the trial court erred in granting plaintiffs’ motions for directed verdicts on the issues of impossibility and duress. Defendant argues there was sufficient evidence presented to submit the issues to the jury. Defendant further argues in his brief that “[i]t is submitted that the evidence supported the defendant’s position that his inability to provide the deed of trust as collateral for the term of note was due to an impossibility not of his own making or responsibility.” He seems to argue that since he could not get his wife to sign the [465] deed of trust in order to secure the other $300,000.00 promissory note, he should not be held liable for the demand note in question. Plaintiffs here are not seeking to enforce the unexecuted secured promissory note, Instead, they are seeking to recover on a fully executed demand promissory note. Defendant signed the note at the 22 July 1985 meeting, and there is no evidence in the record which would be sufficient to justify a verdict for defendant on the defense of impossibility. See Adler v. Lumber Mutual Fire Insurance Co., 280 N.C. 146, 185 S.E. 2d 144 (1971). In support of his contention that the trial court erred in granting a directed verdict for plaintiffs on the issue of duress, defendant cites Link v. Link, 278 N.C. 181, 179 S.E. 2d 697 (1971). In Link, the husband used the threat of instituting legal proceedings to obtain sole custody of the children to force his wife to transfer, without other consideration, her rights to certain stocks and debentures. The court held for the wife, finding that there was evidence to support a finding of duress. Defendant claims that the evidence in the present case, when viewed in the light most favorable to him, is similar to that in Link. Defendant argues that plaintiffs knew that defendant and his companies were substantial creditors of MTI and that MTI’s financial difficulties adversely affected defendant and his companies. Defendant further contends that plaintiffs wrongfully used the levy of execution on MTI’s premises in order to coerce a grossly unfair payment from him “which was not related to any legal obligation” defendant had to plaintiffs. Defendant’s contentions are not supported by inferences that could be drawn from the evidence presented. According to defendant’s own testimony at trial, plaintiff Mitchell obtained a levy of execution on 19 July 1985, before defendant was aware that such action would be taken. Defendant testified that prior to this levy of execution, he was not threatened with the action in any way by any of plaintiffs. After MTI’s premises were padlocked, it was defendant who contacted plaintiffs about setting up a meeting to deal with the situation and to get MTI opened up again. Defendant further testified that he was adamant about getting MTI opened that same day and told Keller that “inasmuch as I had to have the place opened right now, I would not have any problem in signing a promissory note for [$300,000.00]. . . .” [466] The evidence in the present case is clearly distinguishable from that of Link. The promissory note here was signed after considerable negotiations had taken place between Keller and defendant. There was no threat by plaintiffs of any legal action, indeed there was no threat of any kind. In our opinion, the trial court did not err in directing a verdict in favor of plaintiffs as to the defense of duress. No construction of the evidence raises any inference from which a jury could find defendant signed the note while under duress or that it was impossible for defendant to perform. Defendant next argues the trial court erred in the manner in which it conducted the charge conference. Citing no cases as authority, defendant contends the verdict of the jury must be “reversed” because the judge did not inform defendant of the precise wording of the instructions at the conference. Here, the judge discussed with the attorneys what issues were going to be submitted and told them that the jury instructions would follow the applicable law on the issues submitted. We find no conceivable prejudicial error in the manner in which the judge conducted the “charge conference.” By Assignment of Error No. 4, defendant argues the “trial court erred in its instructions to the jury on how the issues should be answered and considered.” While some of the judge’s instructions with respect to how the issues were to be answered could have been confusing, when considered contextually and as a whole, it is obvious that the trial judge made it clear as to how the issues were to be addressed and answered by the jury. This assignment of error is meritless. In his last argument, defendant contends the trial court erred in its instructions to the jury on the issue of consideration. Defendant submitted a request for instruction concerning consideration which stated, “A promise by the plaintiffs to withdraw and withhold execution on MTI would be a thing of legal value and, when given in exchange for a promise to pay, would constitute good and valid consideration.” Defendant argues that he is entitled to a new trial because the judge omitted the words “and withhold” when the judge instructed the jury on the issue of consideration. [467] Although the judge did omit the words “and withhold” from the jury instructions, the record reveals that Issue No. 3 was submitted to the jury as follows: 3. Did the parties at the time of the signing of the promissory note enter into an agreement by the terms of which the Plaintiffs would withdraw execution of the MTI judgment and withhold it until an audit of the business records of MTI was performed and delivered to venture capitalists, as alleged by the Defendant? Answer: No This issue, as submitted, embraced defendant’s theory that the consideration bargained for was not only the withdrawal of the execution of MTI, but the withholding as well. The jury was not deprived of a chance to rule in defendant’s favor on the issue of consideration. In fact, the jury was given that opportunity and chose to answer “No” to that issue. This assignment of error, like the others, has no merit. No error. Judges ARNOLD and ORR concur.