Little v. GRUBB OIL COMPANY

183 S.E.2d 290 (1971)

12 N.C. App. 394

Jean H. LITTLE v. GRUBB OIL COMPANY and June C. Little, Sr.

No. 7122SC617.

Court of Appeals of North Carolina.

September 15, 1971.

*291 Walser, Brinkley, Walser & McGirt by Walter F. Brinkley, Lexington, for plaintiff appellee.

Barnes & Grimes by Jerry B. Grimes, Lexington, for defendant appellants.

GRAHAM, Judge.

Three of appellant's assignments of error raise the question of whether plaintiff proved that she gave any consideration for the subject note.

The note was a negotiable instrument and was under seal. Thus, a presumption of consideration was raised. 1 Strong, N.C. Index 2d, Bills and Notes, § 4. While this presumption is rebuttable as between the original parties or as to any person not a holder in due course, the burden of rebutting the presumption is on the defendant. Wachovia Bank & Trust Co. v. Smith Crossroads, Inc., 258 N.C. 696, 129 S.E.2d 116. The question of whether a defendant has carried this burden is for the jury unless the plaintiff's own evidence establishes the defense of a failure of consideration. See Montague v. Womble, 267 N.C. 360, 148 S.E.2d 255.

Plaintiff's evidence here did not establish a failure of consideration but was in fact sufficient to take the case to the *292 jury, even without the benefit of any presumption. Plaintiff testified that a check for $10,000, made payable to her, was given to her by her husband who stated that it represented proceeds from the sale of a house which was owned by his mother at her death. He said his mother had wanted plaintiff to have the money. Appellant then asked plaintiff to loan him the $10,000, stating that he would give her a demand note which would be as good as cash. Plaintiff endorsed the check and gave it to appellant and appellant gave her the note. Appellant later paid plaintiff $4,000 on the note but refused her demand for further payment.

Appellant denied that plaintiff surrendered anything in exchange for the note, and he testified that it was given to plaintiff so that she would have a claim against his business, Grubb Oil Company, in the case it failed.

Under the evidence presented the question of whether the note was given for sufficient consideration was for the jury. No exception was taken to the court's charge and we therefore presume that the court fairly and accurately presented defendant's contention that there had been a lack of consideration.

Defendant's final assignment of error is directed to a statement interposed by the court during defense counsel's cross-examination of plaintiff. The court stated: "What is the use of all this? It doesn't have a thing in the world to do with the law suit."

Defendant contends this statement constituted a prejudicial comment upon the evidence by the trial judge. We disagree. The prohibition against expressions of opinion by a trial judge on the weight, importance or effect of the evidence, applies only to an expression of an opinion related to facts which are pertinent to the issues to be decided by the jury. Kanoy v. Hinshaw, 273 N.C. 418, 160 S.E.2d 296; McDonald v. McArthur Bros. Co., 154 N.C. 11, 69 S.E. 684. The record here shows that the court's statement was in response to a series of irrelevant questions which had been propounded by counsel. It amounts to nothing more than a ruling that the questions were irrelevant. In the exercise of its rights to control and regulate the conduct of the trial, a court may on its own motion exclude or strike evidence which is wholly incompetent or inadmissible. Greer v. Whittington, 251 N.C. 630, 111 S.E.2d 912.

No Error.

BROCK and VAUGHN, JJ., concur.