Bryer's Executors v. Stewart, 3 N.C. 111, 2 Hayw. 111 (1800)

April 1800 · North Carolina Superior Court

3 N.C. 111, 2 Hayw. 111

Bryer's Executors vs. Stewart.

DEBT ; and upon oyer craved and had, the defendant pleaded nsn rstfactum^ and no award made. The plaintiff replied an award, setting it forth, and stating it to have been mad*; before the 8th of May, and assigned a breach in not paying, &c. issue was joined upon the breach, and as to the award itself, there was a demurrer and joinder, which now came on to be argued. The condition of the bond was, that the defendant would stand to, abide by, and perform the award of the arbitrators, if the same should be made before the 30th of April; bus the defendant afterwards endorsed words, purporting that he would pet form the award if delivered before the 8th of May : and it was now insisted by the defendant’s counsel, that this endorsement being not under seal, and having been made after the delivery of the bond, was no part thereof; and therefore that the award being not delivered before the 80th of April, was not binding on the defendant: and he cited 3 Term, 592 ; where a parol agreement to enlarge the term of building a house, stipu-iated in a deed of covenants, was not allowed of 5 ana there »h the «ose* is stated ¡toother case, where the tint- t< r making art award being enlaigi-o ; not saying whether by parol or how otlur-ivis:*, was not a'iov/ed.

£ contra,

were cited Mod. Entries 254, and 6 Mo. 257.

.And by the court, after two days taken to consider: — The question is, whether the endorsement be part of the boat! — for if it be, then an award made within the time limited by the endorsement, will be good, I agree with those who say that to be a part of the deed the indoisement must be made before the delivery thereof: but then if a deed be delivered and fail of he-effect, and the terms of it be to be ahered, and stick alteration be accordingly made, it is no longer the old contract, hot a new one ; and in order to effectuate the new contract, the deed cop* taming the same, must be delivered. The case in Cowper* where hivdiand and wife mortgaged the lands of the wife, and aftei the death of the husband, she wrote to the tenants to pay rent to the mortgagee ; this was construed to be a new delivery, because tantamount to a new assent to the contract, is in my opinion, decisive of the present: for if that act amounted to a new delivery where the widow never had the deed in h"r hands, how much more will the circumstances in this case amount to a delivery when the deed actually was in the defendant's hands, and the endorsement signed by him, and the whole paper redelivered to the obligee ? This made it to be n new deed in ictoj and consequently the endorsement being before the latter delivery, is a part of the deed- — 'and an award made bel> re the 8th of May, is good.

Judgment for the plaintiff;