SHOENTERPRISE CORPORATION
v.
J. E. WILLINGHAM.
No. 95.
Supreme Court of North Carolina.
October 31, 1962.*770 Adams & Adams and William F. P. Coxe, Jr., Asheville, for defendant appellant.
Lee, Lee & Cogburn, Asheville, for plaintiff appellee.
BOBBITT, Justice.
Defendant's appeal relates solely to the last three installments which, according to the "Schedule of Payments," were to become due May 10, 1958, May 10, 1959, and May 10, 1960. Defendant contends plaintiff's action is also barred as to these three installments because plaintiff by the exercise on June 20, 1957, of its acceleration option, caused the entire unpaid indebtedness evidenced by said note to become immediately due and payable.
"* * * where there is an acceleration clause giving the creditor the right upon certain contingencies to declare the whole sum due, the statute begins to run, only with respect to each instalment, at the time the instalment becomes due, unless the creditor exercises his option to declare the whole indebtedness due, in which case the statute begins to run from the date of the exercise of his option." 34 Am.Jur., Limitation of Actions § 142; 54 C.J.S. Limitations of Actions § 150.
"It appears to be well settled that a provision in a bill or note accelerating the maturity thereof on nonpayment of interest or instalments, or other default, at the option of the holder, requires some affirmative action on the part of the holder, evidencing his election to take advantage of the accelerating provision, and that until such action has been taken the provision has no operation. In other words, some positive action on the part of the holder is an essential condition for the exercise of his option and a mere mental intention to declare the full amount due is not sufficient." Annotation, 5 A.L.R. 2d 968, 970. This rule requires objective evidence of an election to exercise the option.
"The institution of a suit for the whole debt is, of course, the most solemn form in which the holder can exercise his option." 5 A.L.R. 2d 968, 975; Barbee v. Scoggins, 121 N.C. 135, 28 S.E. 259. Unquestionably, the Tennessee action by plaintiff against G. C. Butler and W. H. Butler to recover the whole debt evidenced by said note constituted, as between plaintiff and the Butlers, an exercise by plaintiff of its option and caused "all sums then remaining unpaid to become immediately due and payable." Even so, plaintiff contends it exercised its option to accelerate only as to the Butlers and not as to defendant. The question presented appears to be one of first impression in this jurisdiction and elsewhere. No case involving an analogous factual situation has been discovered by our research or by that of counsel.
The note sued on herein evidenced a single debt. The three comakers, the Butlers and defendant, became jointly and severally obligated for the payment thereof. Daniel on Negotiable Instruments, Seventh Edition, Vol. 1, § 109; G.S. § 25-23(7). The acceleration clause relates to the debt. Whatever the maturity date, it was the same for all comakers. The acceleration clause did not contemplate an exercise of the option by the legal holder as to two comakers but not as to all. Affirmative action constituting an election by the legal holder to accelerate the maturity as to two comakers accelerated the maturity in like manner as to all comakers.
We are of opinion, and so decide, that plaintiff exercised its acceleration option as to defendant as well as to the Butlers on June 20, 1957, by the institution of said Tennessee action against the Butlers. Thus, the entire indebtedness of defendant to plaintiff became due on June 20, 1957, more than three years prior to the date this action was commenced, and plaintiff's action in respect of the entire indebtedness evidenced *771 by said note is barred by the three-year statute of limitations. For the error indicated, the judgment of the court below is vacated and the cause is remanded for judgment in accordance with the law as stated herein.
Error and remanded.