Penniman v. Alexander

111 N.C. 427

Opinion

Burwell, J.:

It cannot be contended that the rights of the plaintiffs against the defendant are stronger than if he had given them his promissory note for the sum named in the writing on which this action is brought, instead of accepting the order as he did. If he had done so, that is, had given to plaintiffs his promissory note for the amount of the order, it would have been competent for him, if sued on the note by the payees, to prove that there was a collateral agreement between him and them to the effect that he should not be required to pay except upon the happening of certain events, or that the note was without consideration. Braswell v. Pope, 82 N. C., 57; Kerchner v. MacRae, 80 N. C., 219. A fortiori was it admissible for the defendant to show that there was a collateral agreement between himself and plaintiffs when he wrote the word “ accepted ” on the order and signed his name thereto, for, if the writing be considered as a draft drawn by Mooney on defendant in favor of plaintiffs, the legal relation of the parties when it had been accepted was that of endorser, maker or payee of a promissory note. Dan. Neg. Inst., § 29.

Error.