{
  "id": 8549874,
  "name": "JEAN H. LITTLE v. GRUBB OIL COMPANY and JUNE C. LITTLE, SR.",
  "name_abbreviation": "Little v. Grubb Oil Co.",
  "decision_date": "1971-09-15",
  "docket_number": "No. 7122SC617",
  "first_page": "394",
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  "last_updated": "2023-07-14T18:50:27.087613+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges Brock and Vaughn concur."
    ],
    "parties": [
      "JEAN H. LITTLE v. GRUBB OIL COMPANY and JUNE C. LITTLE, SR."
    ],
    "opinions": [
      {
        "text": "GRAHAM, Judge.\nThree of appellant\u2019s assignments of error raise the question of whether plaintiff proved that she gave any consideration for the subject note.\nThe note was a negotiable instrument and was under seal. Thus, a presumption of consideration was raised. 1 Strong, N.C. Index 2d, Bills and Notes, \u00a7 4. While this presumption is rebuttable as between the original parties or as to any person not a holder in due course, the burden of rebutting the presumption is on the defendant. Trust Co. v. Smith Crossroads, Inc., 258 N.C. 696, 129 S.E. 2d 116. The question of whether a defendant has carried this burden is for the jury unless the plaintiff\u2019s own evidence establishes the defense of a failure of consideration. See Montague v. Womble, 267 N.C. 360, 148 S.E. 2d 255.\nPlaintiff\u2019s evidence here did not establish a failure of consideration but was in fact sufficient to take the case to the jury, even without the benefit of any presumption. Plaintiff testified that a check for $10,000, made payable to her, was given to her by her husband who stated that it represented proceeds from the sale of a house which was owned by his mother at her death. He said his mother had wanted plaintiff to have the money. Appellant then asked plaintiff to loan him the $10,000, stating that he would give her a demand note which would be as good as cash. Plaintiff endorsed the check and gave it to appellant and appellant gave her the note. Appellant later paid plaintiff $4,000 on the note but refused her demand for further payment.\nAppellant denied that plaintiff surrendered anything in exchange for the note, and he testified that it was given to plaintiff so that she would have a claim against his business, Grubb Oil Company, in the case it failed.\nUnder the evidence presented the question of whether the note was given for sufficient consideration was for the jury. No exception was taken to the court\u2019s charge and we therefore presume that the court fairly and accurately presented defendant\u2019s contention that there had been a lack of consideration.\nDefendant\u2019s final assignment of error is directed to a statement interposed by the court during defense counsel\u2019s cross-examination of plaintiff. The court stated: \u201cWhat is the use of all this? It doesn\u2019t have a thing in the world to do with the law suit.\u201d\nDefendant contends this statement constituted a prejudicial comment upon the evidence by the trial judge. We disagree. The prohibition against expressions of opinion by a trial judge on the weight, importance or effect of the evidence, applies only to an expression of an opinion related to facts which are pertinent to the issues to be decided by the jury. Kanoy v. Hinshaw, 273 N.C. 418, 160 S.E. 2d 296; McDonald v. McArthur, 154 N.C. 11, 69 S.E. 684. The record here shows that the court\u2019s statement was in response to a series of irrelevant questions which had been propounded by counsel. It amounts to nothing more than a ruling that the questions were irrelevant. In the exercise of its rights to control and regulate the conduct of the trial, a court may on its own motion exclude or strike evidence which is wholly incompetent or inadmissible. Greer v. Whittington, 251 N.C. 630, 111 S.E. 2d 912.\nNo error.\nJudges Brock and Vaughn concur.",
        "type": "majority",
        "author": "GRAHAM, Judge."
      }
    ],
    "attorneys": [
      "Walser, Brinkley, Walser & McGirt by Walter F. Brinkley for plaintiff appellee.",
      "Barnes and Grimes by Jerry B. Grimes for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "JEAN H. LITTLE v. GRUBB OIL COMPANY and JUNE C. LITTLE, SR.\nNo. 7122SC617\n(Filed 15 September 1971)\n1. Bills and Notes \u00a7 4\u2014 note under seal \u2014 presumption of consideration\nA note under seal raises a presumption of consideration.\n2. Bills and Notes \u00a7 4\u2014 presumption of consideration \u2014 burden of rebuttal\nWhile the presumption of consideration is rebuttable as between the original parties to a note or as to any person not a holder in due course, the burden of rebutting the presumption is on the defendant.\n3. Bills and Notes \u00a7 4\u2014 husband\u2019s note to wife \u2014 sufficiency of consideration \u2014 jury question\nA wife presented sufficient evidence to go to the jury on the question of whether a $10,000 note executed to her by her husband was given for sufficient consideration, where the wife testified that a check for $10,000, made payable to her, was given to her by her husband, who stated that it represented proceeds from the sale of his deceased mother\u2019s house and that his mother had wanted plaintiff to have the money; and that the husband then asked her for a loan of $10,000, stating that he would give her a demand note which would be as good as cash.\n4. Trial \u00a7 10\u2014 remarks of trial court \u2014 harmless effect\nTrial court\u2019s remarks during defendant\u2019s cross-examination of the plaintiff, \u201cWhat is the use of all this? It doesn\u2019t have a thing in the world to do with the law suit,\u201d was not prejudicial to the defendant, since the remark was made in response to a series of irrelevant questions.\nAppeal by defendant from Crissman, Judge, 10 May 1971 Civil Session of Superior Court held in Davidson County.\nDefendant Little delivered to his wife, the plaintiff, a demand promissory note, dated 8 February 1967, in the amount of $10,000. The note was signed under seal by Little in his individual capacity and also as an official of Grubb Oil Company.\nPlaintiff brought this action to recover $6,000 allegedly due and owing on the note. Grubb Oil Company\u2019s motion for a directed verdict was allowed and the court submitted a single issue to the jury: \u201cWhat amount, if any, is the plaintiff entitled to recover of the defendant, June C. Little?\u201d The jury answered the issue \u201c$6,000.00.\u201d Judgment was entered in accordance with the verdict and defendant Little appealed.\nWalser, Brinkley, Walser & McGirt by Walter F. Brinkley for plaintiff appellee.\nBarnes and Grimes by Jerry B. Grimes for defendant appellant."
  },
  "file_name": "0394-01",
  "first_page_order": 420,
  "last_page_order": 422
}