Bank v. Moore.

51 S.E. 79, 138 N.C. 529, 1905 N.C. LEXIS 296

Opinion

Hoke, J.

The court is unable to perceive anything in tbe allegations or testimony which shows or tends to show a valid defense to this demand. It appears from the answer and tbe evidence that tbe defendant executed tbe note sued on to bis father-in-law, J. E. Reed, for bis stock in the bank and received the consideration. By virtue of bis agreement and the note the defendant became a stockholder in the bank, qualified and served as 'a director, taking part in the bank’s management and receiving pay for bis services. During tbat time, this note was reported as part of the assets of the bank and the jury bave decided tbat same belonged to the bank. Tlie only defense attempted amounts in substance to this: Tbat tbougb the defendant executed bis note and received a valuable consideration for same, there was an understanding and agreement at the time that payment should never be enforced or demanded. All the authorities are agreed tbat such a defense is not open to the defendant. In Meekins v. Newberry, 101 N. C., 18, it was said by Merrimon, J.: “It is a settled rule of law tbat when the parties to a contract reduce the same to writing, in the absence of fraud or mutual mistake properly alleged, parol evidence cannot be beard to alter or contradict or modify it.”

And by Smith, C. J., in Ray v. Blackwell, 94 N. C., 10, “It is a settled rule, too firmly established in the law of evidence to need a reference to authority in its support, tbat parol evidence will not be beard to contradict or alter the terms of a contract put in writing and all contemporary declarations and understandings are incompetent for such purpose.” “Tbe cases,” said the Chief Justice, “which are apparently to the contrary do not contravene this rule, but rest upon the idea that the writing does not contain the contract but is part execution of it.” Tbe decisions here and elsewhere are uniformly to the same effect. Moffitt v. Maness, 102 N. C., 457; Nickelson v. Reves, 94 N. C., 559; Bank v. Tisdale, 84 N. Y., 655; Hirsch v. Oliver, 91 Ga., 554; Forsythe v. Kimball, 91 U. S., 291.

The principle is so familiar tbat citation of authority is not required, but tbe decisions are noted by reason of tbe marked similarity of some of them to tbe case before us.

The jury having ¡declared by their verdict on the first issue that plaintiff is the owner of the note sued on and there being nothing in the further defense or the testimony which tends to establish a legitimate defense, the court is of opinion that the plaintiff is entitled to a judgment for the note and interest notwithstanding the verdict on the second issue and his motion to that effect should have been allowed. Ward v. Phillips, 89 N. C., 215; Corp. Com. v. Railroad, 137 N. C., 1.

Let this be certified to the end that judgment be entered in favor of plaintiff for the note and interest.

Error.