{
  "id": 8625739,
  "name": "NORMAN L. FLIPPEN, Executor, v. R. A. LINDSEY et al.",
  "name_abbreviation": "Flippen v. Lindsey",
  "decision_date": "1942-02-25",
  "docket_number": "",
  "first_page": "30",
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    "name": "Supreme Court of North Carolina"
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  "analysis": {
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  "last_updated": "2023-07-14T17:01:36.695844+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "NORMAN L. FLIPPEN, Executor, v. R. A. LINDSEY et al."
    ],
    "opinions": [
      {
        "text": "Stacy, C. J\".\nWe think the record evidence which tends to show the whole transaction, the relationship of the parties, their interests in the matter, and to fix the payee with notice thereof, is competent as bearing upon the defenses of want of consideration, failure of consideration, suretyship and the statute of limitations. Barnes v. Crawford, 201 N. C., 434, 160 S. E., 464.\nIt is permissible to show by evidence aliunde that one, ostensibly a joint promisor or obligor, is in fact a surety. Insurance Co. v. Morehead, 209 N. C., 174, 183 S. E., 606; Davis v. Alexander, 207 N. C., 417, 177 S. E., 417. The three-year statute of limitations, C. S., 441, is applicable to sureties on sealed instruments as well as on instruments not under seal. Furr v. Trull, 205 N. C., 417, 171 S. E., 641; Redmond v. Pippen, 113 N. C., 90, 18 S. E., 50; Welfare v. Thompson, 83 N. C., 276. See Trust Co. v. Clifton, 203 N. C., 483.\nOf course, in an action by the personal representative of the payee in a note to enforce its collection, C. S., 1795, unless waived, would exclude evidence of personal transactions or communications between an interested party and the deceased. Stocks v. Cannon, 139 N. C., 60, 51 S. E., 802. The exclusion of the record evidence in the instant case, however, seems to have gone beyond the limitations of the \u201cdead man\u2019s statute,\u201d C. S., 1795.\nIt appears that the defendants are entitled to a new trial. It is so ordered.\nNew trial.",
        "type": "majority",
        "author": "Stacy, C. J\"."
      }
    ],
    "attorneys": [
      "II. II. Philips for plaintiff, appellee.",
      "George M. Fountain for defendants, appellants."
    ],
    "corrections": "",
    "head_matter": "NORMAN L. FLIPPEN, Executor, v. R. A. LINDSEY et al.\n(Filed 25 February, 1942.)\n1. Bills and Notes \u00a7 26 \u2014 Evidence aliunde held competent upon defenses of failure and want of consideration and bar of statute of limitations.\nIn this action by the personal representative of the deceased payee against husband and wife who signed a note on its face, defendants set up want of consideration as to them, failure of consideration and no adoption of the word \u201cseal\u201d set opposite their names, the bar of the three-year statute of limitations, and the male defendant alleged that he signed the note as surety and not as principal, which was well known to the payee at the time. Defendants sought to introduce record evidence tending to show that the note was a part of a larger transaction, of which the payee had notice, involving a payment in part of the mortgage indebtedness of the father of the feme defendant and a transfer of the balance to his two daughters. Held: The record evidence was competent upon the defenses invoked.\n2. Bills and Notes \u00a7 9c\u2014\nAs against the payee or his personal representative it is competent to show by evidence aliunde that one, ostensibly a joint promisor or obligor, is in fact a surety.\n3. limitations of Actions \u00a7 2e\u2014\nThe three-year statute of limitations, 0. S., 441, is applicable to sureties on sealed instruments as well as on instruments not under seal.\n4. Evidence \u00a7 32\u2014\nWhile testimony as to personal transactions with the deceased payee of a note would be incompetent to establish defenses to the note over the objection of the personal representative of the payee, record evidence tending to establish such defenses is not precluded by the statute. C. S., 1795.\nAppeal by defendants from Stevens, Jat November Term, 1941, of Edgeoombe.\nCivil action against R. A. Lindsey and Se\u00f1ora Wilson Lindsey, bis wife, to recover on promissory note in words and figures as follows:\n\u201c$1,606.88\nTabbobo, N. 0.\nJuly 1, 1929\nThree years after date we promise to pay to the order of John B. Wood One Thousand, Six Hundred, Six and 88/100 Dollars with interest from date at six per centum per annum, payable annually. Yalue received.\nR. A. LiNdsey (Seal)\nSenoba WlLSON LlNDSEY (Seal)\nR. L. Beall (Seal)\nWillie WilsoN Beall (Seal)\u201d\nExecution of the note is admitted by the defendants. They set up in defense, however, want of consideration as to them, failure of consideration and no adoption of the word \u201cseal\u201d set opposite their respective names. The defendant, R. A. Lindsey, also alleges that he signed the note as surety, and not as principal, which was well known to the payee at the time. Both defendants plead the three-year statute of limitations, O. S., 441. This action was instituted 31 May, 1940.\nThe defendants sought to show by record evidence that the note in suit was but a part of a larger transaction, of which John B. Wood had notice, and that the only one wbo profited from the note in suit was Claude Wilson, father of the feme defendant. This evidence was excluded. Exception. The entire transaction involved a payment in part of Claude \"Wilson\u2019s mortgage indebtedness to the Tarboro Building & Loan Association and a transfer of the balance to his two daughters, Willie Wilson Beall and Se\u00f1ora Wilson Lindsey, signers of the note in suit.\nThere was a verdict for the plaintiff and judgment against the defendants, jointly and severally, from which they appeal, assigning errors.\nII. II. Philips for plaintiff, appellee.\nGeorge M. Fountain for defendants, appellants."
  },
  "file_name": "0030-01",
  "first_page_order": 66,
  "last_page_order": 68
}