American Agricultural Chemical Co. v. Griffin, 202 N.C. 812 (1932)

June 15, 1932 · Supreme Court of North Carolina

202 N.C. 812

THE AMERICAN AGRICULTURAL CHEMICAL COMPANY v. C. ROY GRIFFIN et al.

(Filed 15 June, 1932.)

Evidence .1 a: Frauds, Statute of A a — Parol evidence held admissible to show total failure of consideration for guai*anty of payment.

Where the father signs the note of his son as a guarantor of payment in consideration of the payee’s furnishing the son with fertilizer, on open account, parol evidence of the total failure of the consideration in that the payee did not so furnish fertilizer is admissible as between the parties in an action against the father on the note.

Appeal by defendant, C. Griffin, from Grady, J., at October Term, 1931, of Edgecombe.

Civil action to recover from 0. Roy Griffin, as maker, and Charles Griffin, as guarantor, on a promissory note of $2,600, tried upon the following issues:

“1. Did defendant, Roy Griffin, execute the note, referred to, and was the same endorsed by Charles Griffin, as alleged? Answer: Yes, by consent.

“2. Was the guarantee endorsement of Charles Griffin based solely upon the promise and agreement of the plaintiff’s agent, W. L. Reason, tbat tbe plaintiff company would sell fertilizer to 0. Roy Griffin, for 1929, on open account, as alleged by-tbe defendants? Answer: No.

“3. If so, was there a breach of said contract on tbe part of tbe plaintiff, as alleged by defendants ? Answer:.

“4. In what amount, if anything, are defendants indebted to tbe plaintiff? Answer: $2,600 with interest from 1 January, 1929.”

There was evidence to support áifirmative answers to tbe 2d and 3d issues, but bis Honor excluded it all and directed a verdict for tbe plaintiff. Objection; exception.

Tbe defendant, Charles Griffin, appeals, assigning errors.

V. JS. Fountain and H. C. Bourne for plaintiff.

M. S. Strickland, A. O. Dichens and Gilliam & Bond for defendant.

Stagy, C. J.

This is another instance of a father coming to tbe rescue of bis son by promising to pay tbe latter’s note if not paid at maturity. A guaranty of payment is an absolute promise to pay tbe debt at maturity if not paid by tbe principal debtor. S. v. Bank, 193 N. C., 524, 137 S. E., 593; Cowan v. Roberts, 134 N. C., 415, 46 S. E., 979. But as a consideration for tbe guaranty plaintiff agreed to furnish tbe son, on open account, fertilizer to make bis crop for tbe year 1929. This was tbe sine qua non of the father’s guaranty, and tbe plaintiff has failed to comply with its part of tbe agreement.

Tbe note in suit is made payable to tbe American Agricultural Chemical Company, or order; and it is always open, as between tbe original parties to a contract, upon proper plea, to show a total failure of consideration. Swift & Co. v. Aydlett, 192 N. C., 330, 135 S. E., 141; Pate v. Gaitley, 183 N. C., 262, 111 S. E., 339.

Tbe admission of this character of evidence is not at variance with tbe rule against changing, contradicting or adding to tbe terms of a written instrument by parol, nor is it prohibited by tbe statute of frauds. Harper v. Harper, 92 N. C., 300; 3 R. C. L., 139.

Want of consideration is one of tbe exceptions to tbe rule tbat parol evidence of an oral agreement, alleged to have been made at tbe time of tbe drawing, making or endorsing of a bill or note, is not competent to vary, qualify or contradict, add to or subtract from tbe absolute terms of a written instrument. 2 Parsons Notes and Bills, 501.

Tbe rejected testimony of tbe defendant tending to establish tbe affirmative of tbe 2d and- 3d issues was competent under tbe exception. Carrington v. Waff, 112 N. C., 115, 16 S. E., 1008.

New trial.