Summit Avenue Building Co. v. Sanders

Stacy, J. Tbe execution of tbe contract bere sued on is admitted by tbe defendants; but tbey alleged tbat it was further understood and agreed between tbe parties, at tbe time of tbe making of said memorandum of agreement, tbat if tbe hotel corporation were not organized within tbe stipulated period of ten days, “tbe whole business would be off, and tbat there should be nothing to it, and tbat it would not be binding on any one.” There is no allegation of fraud or mistake. It will be observed tbat this alleged oral contemporaneous agreement is at variance with and contradicts tbe terms of tbe written contract. Tbe defendants, therefore, are not in position to show it by parol evidence. White v. Fisheries Co., ante, 228, and cases there cited. Tbe first year’s rent of $6,000 was to be paid on 1 January, 1920. It is true tbe contract provided tbat this might be arranged by tbe execution of an interest-bearing note, payable 1 July, 1920; but it was further stipulated tbat in tbe event tbe undertaking proved to be a failure, nevertheless tbe rental note in question was to be paid to tbe plaintiff. Tbe note was not executed, but this was a breach of tbe agreement by tbe defendants themselves, and hence tbey ar.e not in position to take advantage of it. To permit tbe defendants to show tbat tbe entire contract was to become null and void upon their failure to organize tbe hotel company within tbe given period of ten days would be to allow tbe defendants to annex a condition subsequent to their agreement and in direct contradiction of tbe express stipulation of tbe written instrument. This may not.be done under our rules of procedure. Bowser v. Tarry, 156 N. C., 39. Tbe defendants having admitted tbe execution of tbe contract, and failing to allege or to show any valid defense to its enforcement, it follows tbat bis Honor should have directed a verdict in favor of tbe plaintiff. New trial.