Roebuck v. Carson, 196 N.C. 672 (1929)

Feb. 27, 1929 · Supreme Court of North Carolina

196 N.C. 672

L. D. ROEBUCK and Wife, HANNA ROEBUCK, v. J. J. CARSON and J. L. GURGANUS, Trustee.

(Filed 27 February, 1929.)

1. Evidence — Parol or Extrinsic Evidence Affecting Writings — Explaining or Modifying Terms of Written Instrument.

Where a written contract is sued on, it may be shown in defense by parol in contradiction thereof that the writing was to be effective only upon certain contingencies which had not happened, or to show a different method of paj’ment, or where a modification has been made after the execution of the writing, providing the mattei's resting in parol are not required by law to be in writing.

2. Same — Bills and Notes.

Where notes in series are to mature at different specified dates, fully stating the amounts of each and the interest to be paid thereon, a contemporaneous oral agreement that upon the payment of a certain bonus the notes were to run for the life time of the maker is in contradiction of the notes as written, and may not be set up as a defense to an action on the notes.

Civil actioN, before Barnhill, J., at January Term, 1929, of Martust.

On 15 November, 1926, tbe plaintiff, L. D. Roebuck, borrowed from tbe defendant, Carson, tbe sum of $6,500, executing and delivering to tbe defendant as evidence thereof five promissory negotiable notes. Four of said notes were executed in tbe sum of $1,000 eacb, payable on 15 November, in tbe years 1927, 1928, 1929, and 1930. Tbe remaining note of $2,500 was payable on 15 November, 1931. Plaintiff and bis wife, in order to secure said notes, executed and delivered a deed of trust upon a certain tract of land, in wbicb deed of trust tbe defendant, Gur-ganus, was named as trustee. Default having been made in tbe payment of tbe notes, tbe trustee advertised tbe land for sale on 24 November, 1928. Thereupon, tbe plaintiff applied for an injunction to restrain tbe sale of said property, alleging “that at tbe time of tbe execution and delivery of tbe notes and deed of trust . . . there was a contemporaneous verbal agreement entered into by and between tbe plaintiff and the defendant according to the terms of which the defendant promised and agreed that if the plaintiff would pay him a bonus of $500 that the defendant would carry said loan during the term of his natural life, . . . provided and upon condition that the plaintiff pay to him each year the interest on said loan at six per cent per annum during said period. And this agreement was entered into by and between the plaintiff and the defendant, notwithstanding the fact that said notes above mentioned, upon their face, would become due and payable as above set out, and said defendant, regardless of what is stated in said notes, made the loan upon this verbal agreement, etc.”

The verbal agreement alleged by the plaintiff .was denied in the answer.

The cause was heard and the following judgment entered, to wit: “Upon consideration of the pleadings, the court is of the opinion and doth so adjudge, that the restraining order heretofore issued be and the same is hereby dissolved.”

From said judgment plaintiff appealed.

A. B. Dunning and B. A. Griicher for plaintiff.

Spruill & Spruill for defendant.

Beogdbn, J.

If promissory, negotiable notes are duly executed and delivered, payable upon certain dates therein specified, can the maker thereof, as against the payee therein, set up a contemporaneous verbal agreement to the effect that the notes would not become payable until the death of the maker ?

The principle of law governing the controversy is thus stated in Fertilizer Co. v. Eason, 194 N. C., 244, 139 S. E., 376: “If a contract is not within the statute of frauds the parties may elect to put their agreement in writing, or to contract orally, or to reduce some of the terms to writing and leave the others in parol. If a part be written and a part verbal, that which is written cannot ordinarily be aided or contradicted by parol evidence, but the oral terms, if not at variance with the writing, may be shown in evidence; and in such case they supplement the writing, the whole constituting one entire contract.”

The test is whether the oral terms vary or contradict the writing. This idea was expressed by the Court in White v. Fisheries Co., 183 N. C., 228, 111 S. E., 182, as follows: “It is true that a contract may be partly in writing and partly oral (except when forbidden by the statute of frauds), and that in such eases the oral part of the agreement may be shown. But this is subject to the well established rule that a contemporaneous agreement shall not contradict that which is written. The written word abides, and is not to be set aside upon the slippery memory of man.”

Tbe alleged contemporaneous agreement, in tbe case at bar, clearly varies or contradicts tbe express terms of tbe notes. Tbe exact point was decided in Hilliard v. Newberry, 153 N. C., 104, 68 S. E., 1056, in wbicb tbe Court said: “Tbe claim tbat there was a contemporaneous oral agreement to tbe effect tbat tbe time could be further extended is in direct contradiction to tbe written stipulation of tbe agreement, and under several recent decisions of tbe Court such a position was not open to defendant.” Walker v. Venters, 148 N. C., 388, 62 S. E., 510; Boushall v. Stronach, 172 N. C., 273, 90 S. E., 198; Cherokee County v. Meroney, 173 N. C., 653, 92 S. E., 616; Mfg. Co. v. McCormick, 175 N. C., 277, 95 S. E., 555.

There are certain exceptions to tbe rule recognized by law. Tbe most frequent exceptions may be classified as follows:

1. Parol evidence is admissible to show tbat tbe contract was delivered upon condition precedent, or tbat tbe obligation was not to be assumed at all except upon certain contingencies. Evans v. Freeman, 142 N. C., 61, 54 S. E., 847; Aden v. Doub, 146 N. C., 10, 59 S. E., 162; Basnight v. Jobbing Co., 148 N. C., 350, 62 S. E., 420; Building Co. v. Sanders, 185 N. C., 328, 117 S. E., 3; Overall Co. v. Hollister Co., 186 N. C., 208, 119 S. E., 1.

2. Parol evidence is admissible to show a different method of payment. Bank v. Winslow, 193 N. C., 470, 137 S. E., 320.

3. Tbe rule excluding parol evidence because it varies or contradicts tbe written contract does not apply when a modification of tbe contract is made after tbe contract has been executed, unless of course tbe law requires a writing. Freeman v. Bell, 150 N. C., 146, 63 S. E., 682; McKinney v. Matthews, 166 N. C., 576, 82 S. E., 1036; Fertilizer Co. v. Eason, 194 N. C., 244, 139 S. E., 376.

Tbe facts disclosed in tbe present record do not bring tbe case at bar within any of tbe exceptions recognized by law, and therefore the ruling of tbe trial judge was correct.

Affirmed.