Cross v. Long, 51 N.C. 153, 6 Jones 153 (1858)

Dec. 1858 · Supreme Court of North Carolina

51 N.C. 153, 6 Jones 153

JOHN J. CROSS AND WIFE v. JOHN M. LONG.

A receipt, not under seal, given outlie obligee of a bond contemporaneously, with its execution, sotting forth that such bond was given for a third person's account, and if the latter was not collected, the bond was to bo returned, was Held not to be evidence that the bond was delivered as an escrow, and did not amount to a defeasance.

Action of debt, tried before Manly, Judge, at the last Eall Term of Cabarrus Superior Court.

The action is debt on a single bill, under seal, for $180,00, dated January 17th, 1853, and payable one day after date, which was given by the defendant to tlie' feme plaintiff, when sole : Pleas, that the bond was delivered as an escrow; and that it was delivered an a condition, which had not been performed. In support of the issue, the defendant offered in evidence a written instrument, given to him by the feme, Of which the following is a copy : “Received of J. M. Long a note for one hundred and eighty dollars, for D. E. Long’s account; and if J. M. Long does not succeed in getting the amount of said note from D. E. Long, the notéis tobe returned to J. M. Long. January 17th, 1853. “Signed,” “Mary M. Henderson.” This evidence was objected to on the part of the plaintiff, but it was received by the Court; and the jury was thereupon instructed, that as the plaintiffs had given no evidence, that the defendant had collected any funds fromD. F. Long, the defendant was entitled to a verdict, which was rendered, and from the judgment the plaintiffs appealed.

JR. Barringer, for the plaintiffs.

Jones and Wilson, for the defendant.

Euinrar, J.

The bond was delivered to the party herself, and, therefore, could not be an escrow. Nor was the instrument executed by her a defeasance, as it was not under seal. It was, therefore, only a collateral agreement in writing, but still in parol; and consequen tly, it could not control the absolute terms of the bond, so as to introduce a condition, as a part of it; Walters v. Walters, 11 Ire. 145. Indeed, this instrument does not purport to speak as a condition, on which the bond was to be void; but is a collateral promise, merely, from the obligee in a certain event, to return or deliver up the bond, or note, as it is called. It was, therefore, improperly received in evidence, and also improperly construed.

PeR Cubiamj Judgment reversed, and a venire de novo.