#### WASHINGTON HORSE EXCHANGE COMPANY v. G. I. BONNER.

(Filed 15 September, 1920.)

Rills and Notes — Endorser—Admissions—Notice—Waiver—Burden of Proof — Instructions—Appeal and Error.

Tbe burden of proof is upon tbe plaintiff in bis action against an endorser on a note to sbow both notice of dishonor or waiver thereof when this defense is relied upon, and an erroneous admission on tbe trial of tbe defendant’s counsel, that the burden was on him to sbow want of notice, does not relieve tbe plaintiff of bis burden of showing- tbe defendant’s waiver, and an instruction to tbe jury that placed tbe burden on defendant to show both tbe lack of notice and its waiver, is reversible error.

Brown, J., did not sit.

Appeal by defendant from Granmer, J., at tbe Spring Term, 1920, of Beaueokt.

This is an action on a note against the defendant Bonner, an indorser.

Tbe defendant admitted tbe execution of tbe note and tbe indorsement tbereon, but denied tbat notice of dishonor of tbe note was given to bim, and therefore insisted tbat be was released from liability.

Tbe plaintiff contended tbat notice was given to tbe defendant, and, if not, tbat it has been waived.

Tbe plaintiff also alleged tbat at tbe time of tbe indorsement of the note tbe defendant agreed to collect tbe same, which was denied by tbe defendant.

Both parties introduced evidence in support of their respective contentions.

Before evidence was introduced by either party, “counsel for defendant stated tbe making and tbe indorsement of tbe note was admitted, and tbe burden on tbe defendant to. sbow want of notice, and be was entitled to open and conclude as a matter of law, and requested tbe court to so bold, and allow bim to open and conclude.”

His Honor so held, and in bis charge told tbe jury: “Tbe burden is upon tbe defendant to satisfy you by tbe evidence, and by its greater weight, tbat be did not receive notice, and did not waive notice. If be has so satisfied you, you will answer tbe issue in bis favor, but if be has not so satisfied you, you will answer tbe issue in favor of tbe plaintiff.”

Tbe defendant excepted. There was a verdict and judgment in favor of tbe plaintiff, and tbe defendant appealed.

Small, MacLean, Bragaw & Rodman for plaintiff.

Daniel & Garter for defendant.

*21AlleN, J.

It is conceded, that the charge excepted to does not state the law correctly, and that the burden was on the plaintiff to prove notice of dishonor, or that the notice had been waived (Perry v. Taylor, 148 N. C., 362), but the plaintiff insists that the error was caused by the conduct of the defendant, in that he had substantially requested the court to so charge, and that, therefore, the defendant cannot take advantage of the error.

It is true that a party cannot except to an instruction given at his request (Kelly v. Traction Co., 132 N. C., 374), but an examination of the instruction given shows that it goes beyond the position taken by the defendant.

The defendant assumed the burden of showing that he did not receive notice, but not that there was no waiver of notice, and the charge places on him the burden of showing both, and in this we are of opinion there is substantial error against the defendant.

The letter which was introduced in evidence by the plaintiff, and to which, the defendant excepted, was, we think, competent as tending to corroborate the evidence of the plaintiff that the defendant agreed to collect the note, which would be material on the issue of waiver of notice, as the principle is well established that there may be a waiver of notice before or after maturity of the instrument.

Eor the error pointed out there must be a

New trial.

BeowN, J., not sitting.