Murray v. Davis, 51 N.C. 341, 6 Jones 341 (1859)

June 1859 · Supreme Court of North Carolina

51 N.C. 341, 6 Jones 341

RILEY MURRAY et. al v. CALVIN C. DAVIS, et. al.

The allegation of a contract made with five, who are plaintiffs, is not supported by proof of a contract made with three, and the variance is a ground of non-suit. [Bond v. Hilton, C Jones’ Rep. 180, cited and approved.,]

Aotioh of assumpsit, tried before Shepherd, J., at the last Spring Term of Beaufort Superior Court.

The plaintiff's declared on a parol warranty of the soundness of a schooner called the “ Caroline,” on a sale of her to them by the defendants. Three of the plaintiffs went on board of the vessel, and made some propositions to two of the defendants, then in possession of her, in the course of which negotiations, a witness said he heard the two defendants present, say the vessel was good. The three plaintiffs above mentioned, did not make known, then, or at any time, as far as appeared, that they were negotiating for others as well as themselves. A bill of sale for the vessel was executed by the defendants to all the five plaintiffs, including the three who were present when the quality of the vessel was spoken of.— There was no evidence to connect the two absent plaintiffs, with the alleged parol warranty of soundness, but it was insisted by the plaintiffs, that the subsequent introduction of their names into the bill of sale, was evidence that the contract of warranty was made with all five of them.

There was no warranty of soundness in the bill of sale, and the defendants urged that against the plaintiffs right to recover. His Honor, however, ruled for the plaintiff's in this particular, and told the jury that if a parol warranty of soundness was made out independently of the bill of sale, a breach of it could be recovered upon in this aetion.'

It was further objected by the defendants that there was no proof of any communication between the defendants and two of the plaintiffs as to the soundness of the vessel, and no evidence that they entered into any such contract as that declared on. To this the plaintiffs replied, that the introduction of the five plaintiff’s names into the bill of salo, was evidence that the contract relied on, was made with these five plaintiffs, and called on the Court so to instruct the jury. But the Court refused so to instruct, and charged the jury that the bill of sale not having any warranty of soundness in it, was no evidence of a parol warranty. Exception by plaintiffs.— Yerdict for the defendants, and judgment. Appeal by plaintiffs.

Wa/rren, for the plaintiffs.

MeBae and Donnell, for the defendants.

Pearson, O. J.

The general rule is, parol evidence is inadmissible to add to, alter, or explain a written instrument. But it is not necessary for us to decide whether this case comes within the application of the rule according to Smith v. Williams, 1 Car. L. Repos. 363, and Pender v. Fobes, 1 Dev. and Bat. 250, or forms an exception under the doctrine of Twidy v. Sanderson, 9 Ired. Rep. 5; Manning v. Jones, Bus. Rep. 368, because his Honor, in the Court below, decided the point in favor of the plaintiff, who is the appellant.

Upon the other question, we concur with his Honor. The allegation of a contract made with five, who are plaintiffs, is not supported by proof of a contract made with three of them, and the variance is fatal as a ground of non-suit. A misjoin-der of plaintiffs in an action ex eonfractio, is a fatal error, 1 Ohitty on Pleading. “Parties.” Such was the common law, and it is not changed by statute. Bond v. Hilton, ante 180.

Per Curiam, Judgment affirmed.