Rudisill v. . Love , 186 N.C. 524 ( 1923 )

Civil action to recover upon the following promissory note:

"$7,500. CHERRYVILLE, N.C. March 1, 1920.

Six months after date, we promise to pay to the order of D. A. Rudisill seven thousand five hundred dollars, with interest from date at six per cent, for value received.

EDGAR LOVE. (Seal) M. M. RUDISILL. (Seal) KEMP B. NIXON. (Seal)"

Defense interposed by M. M. Rudisill and Kemp B. Nixon that they signed said note as sureties only, and that they are not liable thereon as principals.

Upon the issues thus raised, the jury returned the following verdict:

"1. Did the defendants execute the note set out in the complaint, as alleged in the complaint? Answer: `Yes'

"2. Are the defendants indebted to the plaintiff, as alleged in the complaint; and if so, in what amount? Answer: `Yes; the amount of note, $7,500, and interest from 1 March, 1920.'

"3. Was the note sued on executed by the defendants, M. M. Rudisill and K. B. Nixon, as sureties for Edgar Love, to the knowledge of the plaintiff, D. A. Rudisill? Answer: `Yes.'"

Judgment for the plaintiff in accordance with the verdict, from which the administrators of the estate of Edgar Love, deceased, appealed. On the hearing, and over objection of Frank Love and R. C. McLean, administrators of the estate of Edgar Love, deceased, plaintiff was permitted to offer in evidence a part of paragraph 5 of the answer of Rudisill and Nixon and the corresponding allegation in the fifth paragraph of the complaint, as follows:

Complaint: "5. That the defendants are justly indebted to the plaintiff in the sum of $7,500, with interest on $7,500 from the first day of March, 1920, until paid."

Answer of Rudisill and Nixon: "5. Answering the allegations of paragraph 5 of the complaint, these defendants deny that they are indebted to the plaintiff as principals upon the note referred to therein, and alleged that the note was executed by Edgar Love as principal, and by these defendants as sureties thereon."

We think this evidence, tending to show the alleged suretyship of Rudisill and Nixon, was incompetent as against the administrators of the estate of Edgar Love, deceased, under C. S., 1795. It necessarily involved a personal transaction or communication between the defendants, Rudisill and Nixon, and the deceased, for upon the face of the note they all appear to be principals. Obviously, if the contention of the defendants, Rudisill and Nixon, be correct, some different understanding must have existed between the parties to the transaction. Rudisill and Nixon, being parties to this proceeding and interested in the event, may not testify to any such transaction or communication with the deceased, over objection of the administrators. The fact that Rudisill and Nixon are codefendants with the administrators cannot have the effect of rendering this evidence competent, because their interests are in conflict with the interests of the administrators. Sutton v. Wells, 175 N.C. 1.

For the error, as indicated, there must be a new trial on the third issue; but the new trial will be limited to this issue, as we find no error in respect to the others. Pickett v. R. R., 117 N.C. p. 639.

Partial new trial.