Bryan v. . Foy

69 N.C. 45

• Court: Supreme Court of North Carolina
• Decided: June 5, 1873
• Status: Published

Opinion

Settle, J.

We see nothing in the record to distinguish this case from McKenzie v. Culbreth, 66 N. C. Rep. 534.

It is there said that an agreement by a creditor to receive a part in discharge of the whole of a debt due to him by bond is an agreement without consideration, and therefore void, and that that principle is too well established and too long acquiesced in to be disturbed. There are many exceptions to this rule, but after a careful examination of all the authorities cited by the defendant’s counsel, we cannot perceive that this case falls within the principle of any recognized exception.

From the statement in the record that the instrument upon which this action is founded is under seal, we presume that some importance was attached to that fact, and that the plaintiff relying upon the maxim, “ eadem ligamine quo ligatura est dissolvetwwas of opinion that parol evidence could not be heard to contradict his sealed instrument.

A Court of Equity never regards a seal, and since we now administer law and equity in the same Court, a seal has lost much of its ancient dignity and importance. In this instance we attach no consequence whatever to the seal.

We put our opinion upon the ground that there is nothing in all the defendant proposed to show to constitute a consideration, and therefore his agreement was a nudum pactum.

Per Curiam. Judgment affirmed.