{
  "id": 8553195,
  "name": "FIRST NATIONAL BANK OF EASTERN NORTH CAROLINA v. L. D. BLACK and wife, ELMA B. BLACK",
  "name_abbreviation": "First National Bank of Eastern North Carolina v. Black",
  "decision_date": "1970-12-30",
  "docket_number": "No. 7011DC446",
  "first_page": "270",
  "last_page": "273",
  "citations": [
    {
      "type": "official",
      "cite": "10 N.C. App. 270"
    }
  ],
  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [],
  "analysis": {
    "cardinality": 264,
    "char_count": 4411,
    "ocr_confidence": 0.527,
    "sha256": "1b89a420acddcbe67c91f593f12789d5a07895a94f7c141bc4511d5a45dd04aa",
    "simhash": "1:9f0e45e5e8dd324d",
    "word_count": 745
  },
  "last_updated": "2023-07-14T19:51:53.441044+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judges Morris and Graham concur."
    ],
    "parties": [
      "FIRST NATIONAL BANK OF EASTERN NORTH CAROLINA v. L. D. BLACK and wife, ELMA B. BLACK"
    ],
    "opinions": [
      {
        "text": "BROCK, Judge.\nThe crux of defendants\u2019 appeal is the interpretation of the agreement allegedly signed by defendants. It is defendants\u2019 contention that the terms of the agreement only call upon them to, pay such portion of the loan as Barefoot is unable to pay at maturity. They contend, therefore, that the burden was upon plaintiff to prove what portion of the loan Barefoot was unable to pay on 1 November 1967; and upon plaintiff\u2019s failure to offer evidence on this question, defendants were entitled to a judgment of dismissal at the close of plaintiff\u2019s evidence.\nThe only evidence of Barefoot\u2019s ability to pay the indebtedness is plaintiff\u2019s evidence that at sometime after 17 April 1969 execution was issued and returned unsatisfied; this was at least seventeen months after maturity of the note. The record on appeal is absolutely devoid of evidence of Barefoot\u2019s ability to pay on 1 November 1967, the date of maturity. In our opinion defendants\u2019 motion to dismiss at the close of plaintiff\u2019s1 evidence should have been allowed.\nIt is interesting to note that during oral argument counsel for plaintiff and counsel for defendants stated that an official of the bank drafted the guaranty agreement.\nThe judgment appealed from is reversed and this cause is remanded to the District Court of Harnett County for entry of judgment of dismissal under G.S. 1A-1, Rule 41(b).\nReversed and remanded.\nJudges Morris and Graham concur.",
        "type": "majority",
        "author": "BROCK, Judge."
      }
    ],
    "attorneys": [
      "Edgar R. Bain for plaintiff.",
      "Woodall, McCormick & Arnold, by Edward H. McCormick for defendants."
    ],
    "corrections": "",
    "head_matter": "FIRST NATIONAL BANK OF EASTERN NORTH CAROLINA v. L. D. BLACK and wife, ELMA B. BLACK\nNo. 7011DC446\n(Filed 30 December 1970)\nGuaranty; Bills and Notes \u00a7 20\u2014 action against guarantors \u2014 terms of the guaranty \u2014 dismissal of action\nIn a bank\u2019s action against guarantors who promised the payment of such portion of a loan as the debtor \u201cis unable to pay at maturity,\u201d the guarantors are entitled to a dismissal of the action upon the failure of the bank to prove what portion of the loan the debtor was unable to pay at maturity. G.S. 1A-1, Rule 41(b).\nAppeal by defendants from Lyon, District Court Judge, 9 March 1970 Session, Harnett County District Court.\nOn 2 November 1965 Elwood B. Barefoot (Barefoot), husband of male defendant\u2019s sister, executed to the Bank of Lilling-ton, with a chattel mortgage as security, a note in the sum of $3,861.16 due on 1 November 1966. The Bank of Lillington later merged with plaintiff bank.\nThe Barefoot note was not paid at maturity and on 31 March 1967 defendants executed a paper writing as follows:\n\u201cMarch 31, 1967\nTime Payment Department Bank of Lillington Lillington, N. C.\nIn consideration of your agreeing to withdraw your demand for payment in full on your T/P Loan #5828, from the maker \u2014 Elwood B. Barefoot \u2014 until the maturity date of November 1, 1967, at which time the balance of $2,800. will be due, we guarantee the payment of such portion of this loan as Mr. Elwood Barefoot is unable to pay at maturity.\nWitness our hands and seals, this the day and date above written.\n/s/ L. D. Black (SEAL)\n/s/ Elma B. Black (SEAL)\u201d\nAgain on 1 November 1967 the Barefoot note was not paid. Mr. Black, one of defendants, requested and received permission from plaintiff to sell the car included in the chattel mortgage for the purpose of applying the proceeds on the Barefoot note. The car was accordingly sold and the proceeds applied on the note. On 8 July 1968 plaintiff instituted a civil action against Barefoot on the note and secured a judgment on 17 April 1969 for the sum of $2,083.77, plus interest and costs.\nMr. Black was in possession of a tractor and equipment which was included in the Barefoot chattel mortgage to plaintiff. This tractor and equipment was sold for $850.00 and the proceeds applied on the judgment against Barefoot. Thereafter execution was issued on the judgment against Barefoot, but it was returned unsatisfied.\nPlaintiff made demand upon defendants for payment of the balance due on the note, but defendants failed to pay. Plaintiff instituted this action against defendants to recover judgment for the balance of said Barefoot note.\nThe case was tried in the District Court before Judge Lyon without a jury. Judge Lyon made findings of fact and entered judgment in favor of plaintiffs and against defendants for the sum of $1,333.77, plus interest from 19 May 1969, and for the costs. Defendants appealed.\nEdgar R. Bain for plaintiff.\nWoodall, McCormick & Arnold, by Edward H. McCormick for defendants."
  },
  "file_name": "0270-01",
  "first_page_order": 294,
  "last_page_order": 297
}