Clark v. M'Millan, 5 N.C. 265, 2 Car. L. Rep. 265 (1815)

July 1815 · Supreme Court of North Carolina

5 N.C. 265, 2 Car. L. Rep. 265

Clark v. M'Millan.

The defendant gave the plaintiff an instrument of writing, signed by the defendant, but without seal; whereby he acknowledged that he had sold to the plaintiff a certain note of hand, for which he had received part payment, and the balance was to be paid when the money was collected.

The plaintiff offered to prove, by parol, that at the time of the contract, the defendant promised to commence an action against the payers of the note, or one of them, within ten days from the first October, 1806—that, in fact, six months expired before the action was brought. And whether such evidence is admissible, is the question submitted to this Court.

Taylor, C. J.

delivered the opinion.

If the tendency of parol evidence is to contradict, vary, or add to a written instrument, it cannot be received; if to explain and elucidate it, it may be received. Upon the face of this writing there is nothing doubtful or equivocal. It states a simple transaction, and imposes no obligation upon the defendant; but the object of the evidence is to shew, that when he made the contract, he entered into a stipulation, by which a duty was imposed upon him, for the breach of which, this action was probably brought. This is in effect, to prove by inferior evidence, that which purports, on the face of it, to be a memorial of the defendant’s contract, is in truth not so. Such evidence is inadmissible, according to all the authorities.