Justice v. . Coxe

CoNNOR, J. Parol evidence offered by defendant for tbe purpose of showing all tbe terms of tbe contract between -plaintiff and defendant, with respect to tbe transaction of which tbe execution of tbe notes was only a part, was admissible and competent for tbat purpose. Crown Co. v. Jones, 196 N. C., 208, 145 S. E., 5. Tbe agreement shown by the evidence does not contradict, add to, alter or vary tbe terms of tbe notes. *266 Plaintiff’s objections to the admission of the evidence ■ were properly overruled. On her appeal to this Court plaintiff relies solely upon assignments of error presenting her contention. that the parol evidence was inadmissible and should have been excluded, for that it tended to contradict, add to, alter or vary the terms of the notes. These assignments of error cannot be sustained. All the evidence was to the effect that defendant did not receive, and that it was not contemplated by the parties to the contract, pursuant to which the notes were executed, that he should receive any consideration for said notes. He acquired no beneficial interest in the land conveyed to him by the plaintiff. He paid no part of the cash payment on the purchase price for said land; the cash payment was made to the .plaintiff by George W. Knight, Edward Higgins and Samuel Puleston, in accordance with their contract with her. Upon the consummation of the transaction, involving the conveyance of the land by plaintiff to defendant, the said George W. Knight, Edward Higgins and Samuel Puleston became the equitable owners of the land, and upon their assumption of the notes executed by defendant, would have been entitled to a decree that defendant convey the legal title to them. Defendant under his deed from the plaintiff, by reason of the agreement between him and the plaintiff, acquired the bare legal title to the land, which in accordance with his agreement with plaintiff and with them, he conveyed to George W. Knight, Edward Higgins and Samuel Puleston, upon their assumption of the notes for the balance due on the purchase price for the land. Even if it should be held that prior to his conveyance of the land in accordance with his agreement, defendant was liable on the notes to plaintiff, upon such conveyance, in performance of his agreement, he was discharged of such liability. It would he unconscionable to hold otherwise. The law will not permit plaintiff to require defendant to agree to convey the land to a third party, and then after defendant has complied with this agreement, to hold defendant liable on the notes which in accordance with the agreement, he has required such party to assume. The contract, which defendant alleged in his answer was entered into by and between him and the plaintiff contemporaneously with the execution of the notes, was, in effect, that defendant should be discharged of liability upon his conveyance of the land to George W. Knight, Edward .Higgins and Samuel Puleston, and upon their assumption of the notes. Parol evidence to show this contract was admissible upon the principle on which Bank v. Winslow, 193 N. C., 470, 137 S. E., 320, was decided. 'In the opinion in that case it is said, “The law is firmly established that parol evidence is inadmissible to contradict or vary the terms of a nego *267 tiable instrument, büt tbis rule does not apply to’a parol agreement made contemporaneously with the writing providing a mode of payment.” Nor does the rule apply to such parol agreement providing for discharge of the maker otherwise than by payment. The judgment is affirmed. We find No error.