Galloway v. . Thrash

176 S.E. 303, 207 N.C. 165, 1934 N.C. LEXIS 412

Opinion

Stacy, C. J.

Is it competent, as between the parties, to show that a note given by a son to his father represented an advancement and was to be paid by crediting it against the son’s anticipated share of the father’s estate? The answer is, Yes.

It is established by the decisions in this jurisdiction that the rule which prohibits the introduction of parol evidence to vary, modify or contradict the terms of a written instrument, is not violated:

First, by showing a conditional delivery of said instrument. Thomas v. Carteret Co., 182 N. C., 374, 109 S. E., 384; Garrison v. Machine Co., 159 N. C., 285, 74 S. E., 821; Kernodle v. Williams, 153 N. C., 475, 69 S. E., 431.

Second, by showing failure of consideration. Chemical Co. v. Griffin, 202 N. C., 812, 164 S. E., 577; Swift & Co. v. Aydlelt, 192 N. C., 330, 135 S. E., 141; Pate v. Gaitley, 183 N. C., 262, 111 S. E., 339; C. S., 3008.

Third, by showing mode of payment and discharge as contemplated by the parties, other than that specified in the instrument. Kindler v. Trust Co., 204 N. C., 198, 167 S. E., 811; Wilson v. Allsbrook, 203 N. C., 498, 166 S. E., 313; Stockton v. Lenoir, 198 N. C., 148, 150 S. E., 886; Bank v. Winslow, 193 N. C., 470, 137 S. E., 320.

Viewed in the light of the foregoing authorities, and the principles they illustrate, it would seem that the ruling of the Superior Court is well supported, in tendency at least, if not directly, by the decisions on the subject.

It is observed that no effort was made by the father during his lifetime to collect said note; and it is not alleged that its collection is needed to pay the debts of the estate.

Affirmed.

SciiENCic, J., tool no part in the consideration or decision of this case.