{
  "id": 11278214,
  "name": "FIRST NATIONAL BANK of Charlotte v. LINEBERGER, RHYNE & CO.",
  "name_abbreviation": "First National Bank of Charlotte v. Lineberger, Rhyne & Co.",
  "decision_date": "1880-06",
  "docket_number": "",
  "first_page": "454",
  "last_page": "458",
  "citations": [
    {
      "type": "official",
      "cite": "83 N.C. 454"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "74 N. C., 639",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8683290
      ],
      "opinion_index": -1,
      "case_paths": [
        "/nc/74/0639-01"
      ]
    },
    {
      "cite": "74 N. C., 639",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8683290
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/74/0639-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 448,
    "char_count": 8187,
    "ocr_confidence": 0.462,
    "pagerank": {
      "raw": 2.841113287152547e-07,
      "percentile": 0.8399246442553214
    },
    "sha256": "84561a12916577db529369afdd0af9b3e7e84dea96b5776439c6275de89ca7ac",
    "simhash": "1:1d1da0c25c0dcb9b",
    "word_count": 1416
  },
  "last_updated": "2023-07-14T20:23:10.009637+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "FIRST NATIONAL BANK of Charlotte v. LINEBERGER, RHYNE & CO."
    ],
    "opinions": [
      {
        "text": "Asiie, J.\nThere was no exception taken on the trial' to. the issues submitted to the jury nor- to-the - ruling of the* court upon the introduction of evidence, and the only question for our consideration is, was there a proper-judgment-rendered upon the finding of the jury..\nThe principle is well settled that time or fbrbearance-givon by the creditor to the principal debtor by a promise* or contract which binds him in law and would bar his action against the debtor, the surety is-discharged. Because-it essentially varies the terms of the original obligatiorv which ceases to be that for the due discharge- of which he-became surety, and would deprive the surety of the power of instantly saving himself by suit against the-- debtor, if lie should be forced to pay the debt. Parson\u2019s on Notes and. Bills, 259; Daniel on Negotiable Instruments; \u00a7 1312 ; Story on Notes,.\u00a7 14.\nBut this general principle is subject to qualification. The-surety will not be discharged by indulgence given to the-principal when at the time of the agreement for forbearance\u2022 there is an unqualified reservation, of the creditor\u2019s rights. and remedies against the surety. The reason assigned for this doctrine is, because the reservation rebuts the implication that the endorser was meant to be discharged, and prevents the rights of the endorser against the maker being impaired. For the endorser after such an agreement may immediately pay the debt and bring his action against the maker, and his consent that the creditor shall reserve his remedy against the endorser is impliedly a consent that such endorser shall have recourse against him. Evans v. Raper, 74 N. C., 639; Rees v. Bennington, White and Tudor, Hare and Wallace Notes, 382; Daniel on Nego. Inst., \u00a7 1322; Story on Notes, \u00a7 416. These authorities fully sustain the judgment of His Honor in the court below, upon the finding of the jury upon the issues submitted.\nBut there is still another view of the case which is equally strong in support of the judgment of the superior court.\nTo make an extension of time to the debto-r have the effect of exonerating the endorser or su-roty, it is- not merely necessary that there should be an agreement which varies the original contract by postponing the time for its performance beyond that fixed originally by the terms of the obligation, but the agreement for indulgence, if not under seal, must be founded upon a sufficient consideration. It must be such as is legally binding upon the creditor, one that the-debtor may enforce against him, either as a cause of action or as a defence, for if he could not, the surety or endorser will not be discharged. Parsons on Contracts, 240; Daniel on Nego. Instr., \u00a7 1315, and Rees v. Bennington, supra, 383. Hence it must be, that if the consideration for the forbearance be usurious, when such a contract is void by law; the agreement will not discharge the endorser. Rees v. Bennington, supra, 384, and cases there cited in note; Danl. Negoi, Inst., \u00a7 1317; Richmond v. Standcliff, 14 Vermont Rep., 258.; Vilas v. Jones, 1 Comstock, 286, 287.\nIn this last case BronsoN,, J., who delivered the opinion of the court, in reference to some contrariety in the decisions of some of the courts, with respect to the effect which the fact might have upon the rights of the surety, whether the usurious contract was executed or executory, said: \u201c The contract for usury is equally void whether the money is actually paid or only promised to be paid. I think it is impossible to maintain that either the promise or the payment of usury is a good consideration at all.\u201d\nAccording to the finding of the jury in our case upon the first issue, the agreement for the indulgence was void. The act of 1876-77, ch. 91, \u00a7 3, declares \u201c that the taking, receiving, reserving, or charging a rate of interest greater than is allowed in the preceding section (six or eight per cent.) when knowingly done, shall be deemed a forfeiture of the entire interest, which the note or other evidence of debt carries with it, or which has been agreed to be paid thereon; and in case a greater rate of interest has been paid, the person by whom it has been paid or his legal representative may recover back, by an action in the nature of an action for debt, twice the amount of the interest paid.\u201d\nThe purpose and effect of this statute were not only to make void all agreements for usurious interest, but to give a right of action to recover back double the amount after it has been paid. The contract then in our case to pay the one and a half per cent, per month for the indulgence was void. If agreed to be paid in the future the promise was void, and none of the sum - so promised to be paid could be collected by action. And if paid down, double the amount paid could be recovered back. So the agreement taken either way had no legal binding force upon the makers, and therefore according to the authorities cited the endorser was not discharged. There is no error and the judgment of the superior court must be affirmed.\nNo error. Affirmed.",
        "type": "majority",
        "author": "Asiie, J."
      }
    ],
    "attorneys": [
      "Messrs. Bynum & Grier, for plaintiff.",
      "Messrs. A. Burwell and Jones &' Johnstbn; for defendants.."
    ],
    "corrections": "",
    "head_matter": "FIRST NATIONAL BANK of Charlotte v. LINEBERGER, RHYNE & CO.\nSurety and Principal \u2014 Endorser\u2014Indulgence to Principal, when a Discharge to Surety \u2014 Usury.\n1. Forbearance given by a creditor to the principal debtor, by an agreement which binds him in law and would bar his action against the debtor, discharges the surety, unless at the time of forbearance given, the creditor unqualifiedly reserves his rights and remedies against the surety.\n2. The agreement for such indulgence, if not under seal, must be founded upon a sufficient consideration \u2014 such as is legally binding on the creditor and -one the debtor -may enforee against Mm. But If the consideration he usurious, when sueh a eontraet is void, the agreement will not discharge the surety or endorser.\n(Evans v. Raper, 74 N. C., 639, cited and approved.)\nCivil Action (tried at Spring Term., 188\u00a9, of Mecklen-burg Superior Court, before McKoy, J.\nThe plaintiff declared upon a promissory note made by W. & It. Tiddy, for two hundred and sixty-five dollars, payable to the order of the defendants, Lineberger, Rihyne & <Co., sixty days after date, and dated the 6th of March, 1874. And they allege that the said note was endorsed by the said Lineberger, Rhyne & Co., to them for money lent, and that no part thereof has been paid except the interest thereon up to January, 1876.\nThe defendants, by way of defence, say in their .answer, .-after admitting the endorsement, that no notice was ever given to them of thofailure of said makers to pay said note at maturity; that they have no knowledge or information \u00a1sufficient to form - a belief as to the fact that said not\u00e9 had not been paid by said makers, bu.t they believe it had been \u00a1paid ; and for .-a further defence they say that after the said note became due, .and without the knowledge or eonsent of defendants, plaintiff for a valuable consideration \u00a1made an \u00a1agreement with said W. & R. Tiddy, whereby they .agreed to extend the time for the payment of said note by .said makers for thirty days or more. Thereupon the following issues were submitted to a jury:\n1. Bid the plaintiff at or before the maturity of the note \u00a1sued upon, receive from the makers thereof interest thereon in advanee, and >if so, when, at >what rate, and for what time? Answer \u2014 They did; one and one-half per cent per month from maturity until January, 1876.\n2. Did plaintiff, in consideration of the payment of inter-(gat in .advance on the no.te .sued on, agree .with the makers to forbear the collection of the 'said note for-the time for-which interest was so- paid? Answer^ \u2014 They did-.\n3. Did the defendants have any knowledge of' or assent to such agreement to forbear?\" Answer \u2014 They did not.\n4. Did the plaintiff at the time of the agreement to for- . bear as to the maker, reserve- its rights and remedies against, the endorser ? Answer \u2014 Yes.\n5.. Has the note or any part of'it been- paid? Answer \u2014 - Yes; amount $71.55.\nUpon this finding of the jury there- was judgmnet for the-plaintiff'and the defendants appealed to this court..\nMessrs. Bynum & Grier, for plaintiff.\nMessrs. A. Burwell and Jones &' Johnstbn; for defendants.."
  },
  "file_name": "0454-01",
  "first_page_order": 476,
  "last_page_order": 480
}