Smith v. Page Trust Co.

141 S.E. 575, 195 N.C. 183, 1928 N.C. LEXIS 41

• Court: Supreme Court of North Carolina
• Decided: February 22, 1928
• Status: Published

Opinion

BbogdeN, J.

The plaintiff insists that evidence of the defendant to the effect that it received said bonds for the purpose of reselling them to the best advantage, was not competent, for the reason that it contradicted the express language of the deed of trust which recited that “the said parties of the first part are justly indebted to said Page Trust Company for money borrowed in the sum of $13,000, for which the said J. H. Smith has executed and delivered to said Page Trust Company thirteen bonds of even date with this deed in the sum of $1,000 each.” We hold the evidence competent. The principle of law applicable was stated in Bank v. Winslow, 193 N. C., 470, as follows: “And in Typewriter Co. v. Hardware Co., 143 N. C., 97, it was held that when a promissory note is given, payable in money, parol evidence may be received tending to establish as a part of the contract a contemporaneous agreement that a different method of payment should be accepted.”

So that, in the case at bar there was evidence tending to show a contemporaneous agreement between the parties that the defendant should not pay to the plaintiff the money specified in the bonds and deed of trust, but that the) defendant was authorized to sell said bonds at a discount of not more than ten per cent for the use and benefit of the plaintiff.

It is now thoroughly established that the¡ usury law cannot be evaded by any cloak, device or subterfuge, but the trial judge instructed the jury fully and accurately upon every phase of the case, and the jury has accepted the defendant’s version of the transaction, and the judgment upon said verdict is affirmed.

No error.