It is objected to the validity of this recovery: (1) That there is no sufficient evidence of actionable fraud avoiding the contract as it appears in the written instruments; (2) that the evidence offered and received is incompetent as being in contradiction of the written stipulations appearing on the back of the notes. But in our opinion neither position can be sustained.
As to the first objection, in a case at the last term of Williams v. Hedgepeth, 184 N. C., 116, it was said: “It is established by the great weight of authority, and is held for law in this jurisdiction, that where one under the guise of a purchase acquires the goods or property of another under a promise to pay or perform, and has at the time a settled purpose to do neither, such transaction will be regarded as a fraudulent one on the part of the pretended purchaser, and same may be set aside at the instance of the vendor. In Benjamin on Sales (1 ed.), at p. 470, the American Annotator states the position as follows: ‘Another well established species of fraud by a vendee is purchasing with a positive *71intention not to pay for the goods. If sucb intention were known to tbe vendor be certainly would not sell. Its suppression, therefore, is a legal fraud,’ citing, among many other authorities, Des Farges v. Pugh, 93 N. C., 31; Wallace v. Cohen, 111 N. C., 103; Donaldson v. Farwell, 93 U. S., 631; Stewart v. Emerson, 52 N. H., 301, presenting an elaborate and learned opinion by Associate Justice Doe; Watson v. Silsby, 166 Mass., 57. And a subsequent case in this State of Rudisill v. Whitener, 146 N. C., 403, is an approval of the principle as stated. And in Bigelow on Fraud the author says: ‘That according to the current of authority upon this subject, a debt is created by fraud, where one intending at the outset not to pay for property induces the owner to sell it to him on credit by falsely representing or causing the owner to believe that he intends to pay for it, or by concealing the intent not to pay.’ ”
The jury having accepted plaintiff’s version of the occurrence, it appears that defendant company, through its agent, under an agreement not to negotiate the notes till notified of the sale of plaintiff’s farm, and that same should not bind unless and until such sale was had, immediately, and in violation of the agreement, sold same by endorsement to the bank, thus conferring upon the bank full power to enforce collection from plaintiff as a holder in due course.
It further appears that on the day of the occurrence, and before going out to plaintiff’s residence some miles in the country, this agent consulted with the cashier of the bank as to whether White’s notes would be good for eight or ten thousand dollars, and whether the bank could handle the paper. And further said to the cashier that he -was going out to tackle White and see if he couldn’t put something over on him. And returned after dinner with the notes signed by White.
Trite, in the cases cited there had been an executed sale, but here the facts permit the inference that having the fraudulent purpose in his mind at the time, defendant’s agent obtained the notes under the guise of a bona fide agreement not to negotiate, and the cause comes clearly within the principle stated, and the authorities are decisive against defendant’s exception.
And on the second objection, that parole evidence tending to show fraud in the contract was excluded by the written stipulation appearing on the back of the notes; in Miller v. Howell, 184 N. C., 119, it was held, among other things: “Stipulations in a written contract made by an agent in behalf of his principal that exclude all evidence of agreements made by the agent that are not contained in the written contract are maintainable when the contract itself is valid and enforceable; but where the verbal representations of the agent are fraudulent, and affect the existence of the contract, they are admissible to set it aside in its entirety.”
*72This was virtually beld in the former appeal in the cause, 183 N. C., 228, and the position is in full accord with the authorities on the subject. Machine Co. v. Bullock, 161 N. C., 1; Machine Co. v. McKay, 161 N. C., 584; Machine Co. v. Feezer, 152 N. C., 516; Hickly v. Oil and Pipe Line, 132 Iowa, 396; Garrison v. Machine Co., 159 N. C., 285; 10 R. C. L., pp. 1058-1059. As said in Feezer’s case, supra: “To bold the contrary would be to sanction the principle that the deeper the guilt the the immunity, and enable fraud by its own contrivance to so entrench itself that its position would in many instances be practically unassailable.”
We find no reversible error in tbe record, and tbe judgment in plaintiff’s favor is affirmed.
No error.