{ "id": 11273482, "name": "ALFRED FORBES v. B. S. SHEPPARD and WILLIAM WHITEHEAD", "name_abbreviation": "Forbes v. Sheppard", "decision_date": "1887-09", "docket_number": "", "first_page": "111", "last_page": "115", "citations": [ { "type": "official", "cite": "98 N.C. 111" } ], "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": "83 N. C., 454", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11278214 ], "opinion_index": -1, "case_paths": [ "/nc/83/0454-01" ] }, { "cite": "76 N. C., 205", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8689608 ], "opinion_index": -1, "case_paths": [ "/nc/76/0205-01" ] }, { "cite": "84 N. C., 679", "category": "reporters:state", "reporter": "N.C.", "opinion_index": -1 }, { "cite": "93 N. C., 203", "category": "reporters:state", "reporter": "N.C.", "opinion_index": -1 }, { "cite": "84 N. C., 8", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8683706 ], "opinion_index": -1, "case_paths": [ "/nc/84/0008-01" ] }, { "cite": "83 N. C., 276", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11277549 ], "opinion_index": -1, "case_paths": [ "/nc/83/0276-01" ] }, { "cite": "92 N. C., 253", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273237 ], "opinion_index": 0, "case_paths": [ "/nc/92/0253-01" ] }, { "cite": "83 N. C., 454", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11278214 ], "opinion_index": 0, "case_paths": [ "/nc/83/0454-01" ] }, { "cite": "76 N. C., 205", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8689608 ], "opinion_index": 0, "case_paths": [ "/nc/76/0205-01" ] }, { "cite": "84 N. C., 679", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "84 N. C., 8", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8683706 ], "opinion_index": 0, "case_paths": [ "/nc/84/0008-01" ] }, { "cite": "83 N. C., 276", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11277549 ], "opinion_index": 0, "case_paths": [ "/nc/83/0276-01" ] } ], "analysis": { "cardinality": 458, "char_count": 7929, "ocr_confidence": 0.471, "pagerank": { "raw": 3.805934802805404e-07, "percentile": 0.8976505966177951 }, "sha256": "816dc686d737e949d6ce999f4ba138bbd4b83f2a666954143e1d7d7914dd39a3", "simhash": "1:2d24b66f1e6b6cc3", "word_count": 1383 }, "last_updated": "2023-07-14T17:51:55.485321+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "ALFRED FORBES v. B. S. SHEPPARD and WILLIAM WHITEHEAD." ], "opinions": [ { "text": "Smith, C. J.,\n(after stating the case). 1. Exception. Aside from the fact that the evidence of suretyship was received without objection at the time, we concur in his Honor\u2019s ruling that it was competent, and is sustained by the following adjudications: Welfare v. Thompson, 83 N. C., 276; Cole v. Fox, Ib., 463; Goodman v. Litaker, 84 N. C., 8; Williams v. Glenn, 92 N. C., 253.\n2 Exception. The effect of a contract for forbearance to sue for a fixed and limited period, founded on a sufficient consideration, with the principal, -without reserving the right to proceed against the surety, and made without his assent, is too well settled to need further discussion. The exoneration of the surety is the same when the contract of forbearance is usurious in terms, and especially when the consideration has been paid. We are content to cite some of our own adjudications. Scott v. Harriss, 76 N. C., 205; Bank v. Lineberger, 83 N. C., 454, modified in Carter v. Duncan, 84 N. C., 679; and to refer to some recent text hooks \u2014 Brant on Suretyships, \u00a7304 and following; Baylies on Sureties, page 251, et seq\n3. Exception. We think there was no evidence of any trick or fraud practiced in bringing about the arrangement for indulging the debt. The transaction was entirely free from the imputation of unfairness, upon the defendant\u2019s testimony, nor does the plaintiff\u2019s statement vary its aspect in this respect.\nInasmuch as no indulgence was in fact given, as suit was brought on the very day when the money was paid, in disregard of the contract, it occurred to us that it was thus virtually annulled, and no disability imposed upon the surety to his disadvantage. But the authorities are to the contrary, and it is held that the exoneration grows out of the agreement to forbear, and is not affected by the creditor\u2019s breach of it after it was made.\nWe find no error in the record, and the judgment must, be affirmed.\nNo error. Affirmed..", "type": "majority", "author": "Smith, C. J.," } ], "attorneys": [ "Mr. W B. Rodman, Jr., for the plaintiff.", "No counsel for defendant." ], "corrections": "", "head_matter": "ALFRED FORBES v. B. S. SHEPPARD and WILLIAM WHITEHEAD.\nPrincipal and Surety \u2014 Exoneration\u2014Forbearance\u2014Contract\u2014 Evidence.\n1. It is competent upon the trial of an action upon a bond, to show that one of the obligors was surety, and this fact was known to the ob-ligee.\n2. An agreement with a principal, on a sufficient consideration, to forbear to sue for a fixed period, without reserving the right to proceed against the surety, and made without his assent, will exonerate him from liability.\n8. The exoneration grows out of the agreement to forbear, and is not affected by the creditor\u2019s breach of it.\n(Welfare v. Thompson, 83 N. C., 276; Cole v. Fox, Ibid., 463; Goodman v. IAtaker, 84 N. C., 8; Williams v. Glenn, 93 N. C., 203; Carter v. Duncan, 84 N. C., 679; Scott v. Harriss, 76 N. C., 205; Bank v Lineberger, 83 N. C., 454; cited and approved).\nCivil action, tried before Connor, Judge, at Fail Term, 1885, of Pitt Superior Court.\nThere was a verdict and judgment in favor of the defendant Whitehead, from which the plaintiff appealed.\nThe defendant Sheppard, as principal, and the defendant Whitehead, as surety, for money loaned to the former by the plaintiff on March 12th. 1881, to secure the same, executed to him their bond in the following form:\nOn or before January 1st, 1882, we, or either of us, promise to pay to Alfred Forbes, or order, eight hundred and eighty dollars, with interest at eight per cent, from date, being for value received.\nWitness our hands and seals.\nB. S. SHEPPARD, (Seal.)\nWILLIAM WHITEHEAD, (Seal.).\nSeveral small sums, besides one of $240, are endorsed as credits, with their respective dates.\nThe present action was instituted in February, 1884, against both defendants, of whom the said Whitehead alone put in an answer.\nIn defence, he alleges that on a day not mentioned, the , plaintiff and his co-defendant, the principal debtor, entered into an agreement, wheieby for the consideration of $25.00, to be paid by defendant, and paid by him, the plaintiff promised to indulge and extend the time of payment for ten months thereafter, and that this was without the knowledge or consent of respondent, whereby he alleges he became and is exonerated from liability for the debt.\nUpon this controverted matter of defence, issues were drawn up and passed on by the jury, who find in response:\n1. That Whitehead signed the bond as surety, and this was known to the plaintiff; and\n2. That the plaintiff did agree with Sheppard, in consideration of $25.00 paid him by the latter, to give him indulgence upon the bond, and not to sue thereon, until the 1st of January, 1885. \u2022\nOn the trial, the defendant Sheppard was introduced as a witness for the contesting defendant, who testified that he borrowed the money, and the bond was executed by Whitehead as a surety, and this was understood by the plaintiff'; that about the last of January, 1884-, hearing that the latter wanted his money, witness saw him, and he agreed for the sum of $25.00 to indulge him till January 1st, 1885, and would not sue before that time; that afterwards he rode up to plaintiff\u2019s store, where he was standing, and handed him the money agreed on, saying: \u201c Here is that money I promised you; \u201d and the plaintiff then retired into his store, and witness left; that about two weeks later, and after the action was begun, plaintiff offered him the money, which was refused ; and that Whitehead knew nothing of the arrangement.\nThe plaintiff for himself'testified, that when applied to for the loan of the money, nothing was said about the sure-tyship of Whitehead, but he supposed he was surety to the bond; that the bond was afterwards delivered by Sheppard, who received the money ; that in February, 1884, Sheppard came to his store and said : \u201c I will give you that $25.00 if you will give the indulgence;\u201d that witness took the money, went back into the store, examined the bond, and finding that it would be out of date in a short time, as to the surety, determined not to give the indulgence; that returning to the front of his store, he found that Sheppard had left; that when he next met him, he tendered the money, which was refused, and it was then credited upon another account; that while he did not remember it, he would not swear that no previous conversation had taken place about forbearing to joress the collection of the debt.\nThe suit was commenced on the same day that the money was received.\nThe plaintiff did not object to the evidence relating to the suretyship when it was offered, but afterwards, before the testimony was closed, moved to have it withdrawn from the jury as incompetent, and asked the Court to instruct the jury to this effect, because it was offered to vary or change the legal relations of the parties as shown upon the face of the bond.\nThe Court declined both propositions, and the plaintiff excepted:\nWhen about to address the jury, the plaintiff\u2019s counsel stated that he proposed to argue from the testimony, that the giving the $25.00 \u201c was a trick calculated to throw plaintiff off his guard, and deprive him of due opportunity of deliberation,\u201d and if it had that effect, it was not accepted, and no contract made.\nThe Court replied to the suggestion, that there was no evidence of trick or fraud, and in consequence counsel declined to argue the case to the jury.\nThe plaintiff\u2019s counsel requested an instruction, which was in substance given, in this form :\nIf when Sheppard handed the $25.00 to the plaintiff, the latter took the money, not in fulfilment of a previous contract, but to hold until he should examine the papers and determine whether or not he would accept the money, and upon examining the paper concluded not to accept it, or to complete a contract to indulge the bond, and so informed Sheppard as soon as he afterwards could, and offered to return the money, then the contract to give time was not complete and binding on the plaintiff.\nMr. W B. Rodman, Jr., for the plaintiff.\nNo counsel for defendant." }, "file_name": "0111-01", "first_page_order": 143, "last_page_order": 147 }