Kelly v. . Oliver

18 S.E. 698, 113 N.C. 442

• Court: Supreme Court of North Carolina
• Decided: September 5, 1893
• Status: Published

Opinion

Shjsphekd, C. J.:

As the name of the defendant is the last on the instrument, it cannot be claimed that the other par ties signed it in reference to his becoming a party. Neither does it appear that any specific sum was to be raised, so that the release of the defendant would increase the liability of the others. This being so, it was competent for the defendant to show that, although he signed the instrument, it was not to go into effect, as to him, until the plaintiff had procured the signatures of twenty others to the same. This does not contradict the terms of the writing, but amounts to a collateral agreement, postponing its legal operation until the happening of a contingency. Penniman v. Alexander, 111 N. C., 427. The contract sued upon is a special and entire contract, and must be performed before the plaintiff can recover. The scholastic year ended on the first of June, 1892, and this action was brought in April of that year. We think the action was prematurely brought. Brewer v. Tysor, 3 Jones, 180; Lawing v. Rintels, 97 N. C., 350. We have examined the authorities cited by plaintiff’s counsel, and are of the opinion that they do not sustain his contentions.

There must be a New Trial.