Murray v. . Davis

51 N.C. 341

• Court: Supreme Court of North Carolina
• Decided: June 5, 1859
• Status: Published

Opinion

Pearson, O. J.

The general rule is, parol evidence is inadmissible to add to, alter, or explain a written instrument. But it is not necessary for us to decide whether this case comes within the application of the rule according to Smith v. Williams, 1 Car. L. Repos. 363, and Pender v. Fobes, 1 Dev. and Bat. 250, or forms an exception under the doctrine of Twidy v. Sanderson, 9 Ired. Rep. 5; Manning v. Jones, Bus. Rep. 368, because his Honor, in the Court below, decided the point in favor of the plaintiff, who is the appellant.

Upon the other question, we concur with his Honor. The allegation of a contract made with five, who are plaintiffs, is not supported by proof of a contract made with three of them, and the variance is fatal as a ground of non-suit. A misjoin-der of plaintiffs in an action ex eonfractio, is a fatal error, 1 Ohitty on Pleading. “Parties.” Such was the common law, and it is not changed by statute. Bond v. Hilton, ante 180.

Per Curiam, Judgment affirmed.