Ripple v. . Stevenson

Stacy, C. J. We have here for determination, (1) the merit of the motion for judgment as in case of nonsuit, and (2) the correctness of the charge. The right to maintain the action is challenged on the ground that the plaintiff is not the real party in interest, as the “services” for which the note was given were rendered to the partnership of Ripple and Stevenson. Chapman v. McLawhorn, 150 N. C., 166, 63 S. E., 721. Even so, it also appears that the note represents a personal transaction between the parties. At least, such is the plaintiff’s evidence, and this would seem to be sufficient to defeat the motion for judgment of nonsuit under one or more of the exceptions set out in Pugh v. New Bern, 193 N. C., 258, 136 S. E., 707. *286 It is permissible for the parties to agree that a note shall be paid only-in a certain manner, e.g., out of a particular fund, by the foreclosure of collateral, or from rents collected from a certain building, etc. Jones v. Casstevens, 222 N. C., 411. And this part of the agreement may be shown, though it rest in parol. In Wilson v. Allsbrook, 203 N. C., 498, 166 S. E., 313, the alleged agreement was, that the note there in suit should be paid “from rents collected by the defendant.” Here, the defendant alleges a similar agreement. However, the jury did not accept the defendant’s contention in respect of the mode of payment. See Evans v. Freeman, 142 N. C., 61, 54 S. E., 847; Bank v. Winslow, 193 N. C., 470, 137 S. E., 320. In the light of the theory of the trial, as announced in the pleadings and pursued on the hearing, the case presents little more than controverted issues of fact, determinable alone by the jury. There are a number of exceptions to the charge, some of omission, others of commission, but a careful perusal of the entire record induces the conclusion that none of them can he sustained. It would be repetitious of familiar principles to discuss them in detail. The usual formula of contextual interpretation is to be applied to the charge. S. v. Smith, 221 N. C., 400, 20 S. E. (2d), 360. On the record as presented, the verdict and judgment will be upheld. No error.