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Wells v. Barefoot

Filed: February 2, 1982.

HORACE WELLS
v.
JERRY C. BAREFOOT AND WIFE SYBIL S. BAREFOOT



Appeal by plaintiff from Bennett, Judge. Judgment entered 8 December 1980 in District Court, Mecklenburg County. Heard in the Court of Appeals on 7 December 1981.

Hedrick, Judge. Chief Judge Morris and Judge Martin (Robert M.) concur.

Hedrick

Plaintiff contends the trial court in allowing defendants' motions for directed verdict. A defendant's motion for directed verdict presents the question.

whether all the evidence, which supports the plaintiff's claim, when taken as true, considered in the light most favorable to the plaintiff and given the benefit of every reasonable inference in the plaintiff's favor which may legitimately be drawn therefrom is sufficient for submission to the jury. Contradictions, conflicts and inconsistencies in the evidence must be resolved in plaintiff's favor in determining the sufficiency of the evidence to withstand a motion for directed verdict.

Tripp v. Pate, 49 N.C. App. 329, 332-33, 27 S.E.2d 407, 409 (1980). The record in the present case reveals that defendant Jerry Barefoot based his motion for directed verdict on the specific ground that he motion for directed verdict on the specific ground that he received no consideration for giving plaintiff the note dated 16 May 1966. Defendant Sybil Barefoot based her motion on the specific ground that the $350 payment made on 10 November 1969 did not toll the statute of limitations as to her. The record further discloses that in granting defendants' motions for directed verdict, the court adopted the grounds argued by defendants. Hence, in reviewing the propriety of the respective directed verdicts, the inquiry on appeal is limited to determining whether there was sufficient evidence of consideration and of a tolling of the statute of limitations.

The 16 May 1966 transaction at issue in this case is not covered by the Uniform Commercial Code, the present G.S. Chapter 25, since that chapter applies only to transactions entered into after 30 June 1967. See G.S. § 25-10-101; Yates v. Brown, 275 N.C. 634, 642, 70 S.E.2d 477, 483 (1969).

Proof that a note was executed under seal raises a presumption of good and sufficient consideration; this rule applies whether

the instrument is non-negotiable, Royster v. Hancock, 235 N.C. 110, 112, 69 S.E.2d 29, 30 (1952); Honey Properties Inc. v. City of Gastonia, 252 N.C. 567, 571, 114 S.E.2d 344, 347 (1960); McGowan v. Beach, 242 N.C. 73, 77, 86 S.E.2d 763, 766 (1955); Basketeria Stores, Inc. v. Public Indemnity Co., 204 N.C. 537, 538, 168 S.E. 822, 823 (1933), or is negotiable and governed, as would be the case here, by the law applicable to negotiable instruments executed before the 30 June 1967 effective date of the Uniform Commercial Code. Wachovia Bank & Trust Co. v. Smith Crossroads, Inc., 258 N.C. 696, 697, 129 S.E.2d 116, 116 (1963); Mills v. Bonin, 239 N.C. 498, 501, 80 S.E.2d 365, 367 (1954); see also § G.S. 25-10-101; Yates v. Brown, supra ; G.S. § 25-10-102(2), -1-103. When the presence of a seal raises such a presumption, the plaintiff has discharged his burden of producing evidence on the issue of consideration. See State v. Williams, 288 N.C. 680, 687, 220 S.E.2d 558, 564, 395, 183 S.E.2d 290, 291 (1971). "The question of whether a defendant has carried this burden is for the jury unless the plaintiff's own evidence establishes the defense of failure of consideration." Little v. Grubb Oil Co., supra at 395, 183 S.E.2d at 291; se also Chesson v. Gardner, 32 N.C. App. 777, 778, 233 S.E.2d 668, 668 (1977). A presumption not only discharges the proponent's burden of producing evidence, but also throws upon the other party the burden of producing evidence that the presumed fact does not exist. State v. Williams, supra ; 2 Stansbury's supra. If the other party produces no such evidence or proffers evidence insufficient for that purpose, the party against whom the presumption operates will be subject to an adverse ruling, by the judge, directing the jury to find in favor of the presumed fact if the basic fact is found to have been established. State v. Williams, supra ; 2 Stansbury's, supra. A presumption merely fixes on the opponent the burden of producing evidence, and leaves the burden of the issue unaffected. State v. Williams, supra ; 2 Stansbury's, supra.

In the present case, plaintiff presented evidence that the promissory note contained the seal of its two makers, Jerry and Sybil Barefoot. Thus, plaintiff's evidence was sufficient to take the case to the jury on the issue of consideration, and the trial

judge erred in directing a verdict for defendant Jerry Barefoot on the theory that "there was no consideration on the note."

With respect to whether plaintiff's claim against defendants was barred by the statute of limitations, it is to be noted that the statute of limitations for an action upon a sealed instrument is ten years. G.S. §§ 1-15, -46, -47(2). The statute of limitations on an action on a promissory note payable on demand begins to run from the date of the execution of the note. Caldwell v. Rodman, 50 N.C. 139, 140-41 (1857); Causey v. Snow, 122 N.C. 326, ...


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