Smith v. . Haynes

82 N.C. 448

• Court: Supreme Court of North Carolina
• Decided: January 5, 1880
• Status: Published

Opinion

Ashe, J.

The only exception taken by the defendant.on -the trial was to the competency of the testimony of Russell and the plaintiff, who were offered on the part of the plaintiff, io show that the plaintiff had signed the note as surety and for the accommodation of the defendant. But His Plonor overruled the objection and allowed the evidence to ■be introduced. The defendant contends that the testimony <of the plaintiff had been made incompetent by the act of 1879, chapter 183, and that of the witness, Russell, was also -incompetent because it explained a written contract.

The testimony of both the witnesses was properly admitted. The act of 1879 referred to, has no application to a case of this kind. It had reference only to actions founded ■on judgments and bonds under seal, rendered or executed before the first of August, 1868, the purpose of which act was, to prevent the presumption of payment arising after ,th.e lapse of ten years, upon such judgments and bonds, from being rebutted by the testimony of the plaintiff in the action.

The-other ground-of -the exception is equally untenable. -It is conceded that it is .a general rule -of law that parol evidence cannot be admitted to contradict, add to, subtract •from, or vary the terms of a written contract. “ But it is to be recollected that the contract between the principal and •surety, .though it may be inferred- from the nature of the .security given to the creditor, is not contained therein, nor evidenced thereby, but is a collateral contract, usually a parol one, which may therefore be shown by any competent and satisfactory evidence.” Wharton v. Woodburn, 4 Dev. & Bat., 507. See also the cases of Thornton v. Thornton, 63 N. C., 211; Mendenhall v. Davis, 72 N. C., 150; Love v. Wall, 1 Hawks, 313; Dan’l Neg. Inst., § 1336.

There is no error. Judgment will be rendered here for the plaintiff.

No error. Affirmed.