Coral Gables, Inc. v. . Ayres.

181 S.E. 263, 208 N.C. 426, 1935 N.C. LEXIS 437

• Court: Supreme Court of North Carolina
• Decided: September 18, 1935
• Status: Published

Opinion

Stacy, C. J.

As appellant’s statement of case on appeal was not returned by appellee with objections within the time prescribed, it thereby became the statement of case on appeal by operation of law. C. S., 643; S. v. Ray, 206 N. C., 736, 175 S. E., 109; Carter v. Bryant, 199 N. C., 704, 155 S. E., 602. The transcript is not very full or clear, but, as we understand it, the defendant was permitted to offer parol evidence in contradiction of the terms of her written instrument. This is at variance with the established rule. Bank v. Dardine, 207 N. C., 509, 177 S. E., 635; Roebuck v. Carson, 196 N. C., 672, 146 S. E., 708.

In Manufacturing Co. v. McCormick, 175 N. C., 277, 95 S. E., 555, it was said a contemporaneous oral agreement “that defendant would not be required to pay his note according to its terms,” and that payment of the principal would be extended at maturity upon payment of interest, could not be allowed as a defense because in direct contradiction of the written promise to pay.

Similarly, in Hilliard v. Newberry, 153 N. C., 104, 68 S. E., 1056, an alleged contemporaneous oral agreement to extend the time of payment beyond that appearing on the face of the note, was not allowed to be shown in evidence. To like effect are the decisions in Thomas v. Carteret, 182 N. C., 374, 109 S. E., 384; Boushall v. Stronach, 172 N. C., 273, 90 S. E., 198; Rousseau v. Call, 169 N. C., 173, 85 S. E., 414; Woodson v. Beck, 151 N. C., 144, 65 S. E., 751; Walker v. Cooper, 150 N. C., 128, 63 S. E., 681; Walker v. Venters, 148 N. C., 388, 62 S. E., 510; Mudge v. Varner, 146 N. C., 147, 59 S. E., 540; Bank v. Moore, 138 N. C., 529, 51 S. E., 79; Ray v. Blackwell, 94 N. C., 10.

Of course, the defendant would not be prohibited from showing, if such be the fact and the meaning of her allegation, that, upon a resale of the land by Kearney, her note was to be delivered up and cancelled. Calloway v. Thrash, 207 N. C., 165, 176 S. E., 303; Bank v. Rosenstein, 207 N. C., 529, 177 S. E., 643; Williams v. Turner, ante, 202; Furr v. Trull, 205 N. C., 417, 171 S. E., 641. However, as now presented, the case seems not to have been tried upon this theory. An appeal ex necessitate follows the theory of the trial. Hargett v. Lee, 206 N. C., 536, 174 S. E., 498; Holland v. Dulin, 206 N. C., 211, 173 S. E., 310. “The theory upon which a cause is tried must prevail in considering the appeal, and in interpreting a record and in determining the validity of exceptions” — Broaden, J., in Potts v. Ins. Co., 206 N. C., 257, 174 S. E., 123.

The plaintiff is entitled to a new trial. It is so ordered.

New trial.