Stockton v. . Lenoir

150 S.E. 886, 198 N.C. 148, 1929 N.C. LEXIS 440

• Court: Supreme Court of North Carolina
• Decided: December 30, 1929
• Status: Published

Opinion

Stacy, C. J.,

after stating the case: It appears that the plaintiff and the defendant, who are presumed to know best what was intended by their agreement, have heretofore interpreted the notes in suit to mean that they should be paid only out of funds collected from Almazov and Albert. If this be a reasonable or permissible interpretation of the record, and we think it is, it follows that there was error in the court’s peremptory instruction to the jury.

The defendant, it seems, was willing to pay the plaintiff a substantial sum for his services, provided the sale was completed and the full purchase price received in cash; while the plaintiff, on the other hand, apparently assented to the special arrangement that his commissions, though evidenced by notes, should be paid only as and when the purchase money was collected from Almazov and Albert. Accordingly, the plaintiff has been paid 10 per cent of what money the defendant has received out of the transaction, and no more. Joice v. Bohanan, 49 N. C., 364. This, the defendant says, accords with the understanding between the parties.

Notwithstanding the due dates, fixed in the notes sued upon, it is permissible to show by parol that a different mode of payment and discharge was contemplated by the parties, especially when the notes them selves bear evidence of such, agreement. Bank v. Winslow, 193 N. C., 470, 137 S. E., 320; Typewriter Co. v. Hardware Co., 143 N. C., 97, 55 S. E., 417.

For tbe error, as indicated, a new trial must be awarded, and it is so ordered.

New trial.

CoNNOR, J., dissents.