Carter v. . Duncan

Smith, O'. J., after stating the case. It was formerly held under rules strictly technical, that a subsequent parol agreement between the parties to an instrument under seal varying its terms, or suspending its operation, or deferring an accrued right of action thereon, was inoperative by reason of its merger in the higher security; and the rule prevails *679 as to promises previous or subsequent alike, where the promise and covenant are the same. Burnes v. Allen, 9 Ired., 370. The effect of a parol agreement, sustained by a sufficient legal consideration, for further forbearance in enforcing the right of action which had arisen upon a covenant, is fully discussed and the authorities citied and commented on in the opinion of Rodman, J., in the case of Harshaw v. McKesson, 65 N. C., 688. It is there held that an acceptance of a mortgage security for a debt due by bond and a contemporary contract on the part of the creditor, put in the form of a covenant by his agent, but for want of authority under seal, effective only as a parol undertaking to give indulgence for three, four and five years in consideration of the mortgage, had the legal effect of suspending the plaintiff’s right of action. The principle there laid down quoted from note to May v. Taylor, 6 M. & G., 262, under the old system of practice, is thus expressed: “ The distinction appears to be this: there can be no dispensation with a contract under seal except by a release under seal. Aeeord and satisfaction before breach is therefore a bad plea in covenant because it amounts to a dispensation. But accord and sat-isfation after breach is a good plea, because the subject matter of the payment, and acceptance in satisfaction is not the covenant, which still remains entire, but the damages sustained by the particular breach of it for which the action is brought.” “There is little use,” remarks the court, “in holding on to a rule after it has been reduced to such a shadow,” and the conclusion is reached and announced in these words: “ If the matter can be pleaded as satisfaction, it must be equally good relien pleaded only in suspension of the action.” To the same effect is the case of Canal Co. v. Ray, 101 U. S., 522. While the plaintiff refused to accept the stipulated sum for the second year’s indulgence for the reason that the contract is entire and single, embracing both years as payment was offered and refused, the consequences are *680 the same as if the money had been received. The action has been therefore prematurely brought and in- disregard of the plaintiff’s eon tract. While it may not be necessary-to consider the effect upon the rights and liability of the endorser, resulting from- the finding on the second issue, yet we are inclined to hold in accordance with the opinion of Rcgwin, J., in Pipkin v. Bond, 5 Ired. Eq., 91, and the ruling in Scott v. Harris, 76 N. C., 205, to which our attention was not called in the argument in Bank v. Lineberger, 83 N. C., 454, that he as surety is exonerated by reason of the plaintiff’s agreement to forbear and his acceptance of the usurious consideration for-doing so, and to modify the opinion in the last mentioned ease accordingly. The cases outside of the state are conflicting as will be seen by th© authorities there referred to, and the following others — the preponderance seeming to be with our former ruling —Duncan v. Reed, 8 B. Monc., 382; Camp v. Howell, 37 Ga., 312; Draper v. Trescott, 29 Barb., 401; 15 Ohio St. Rep., 57 and 295; 2 Danl. Neg. Inst., § 1317. We have deemed it safer for the stability of the law7 to adhere to our own adjudications upon the controverted point. There is no error and the judgment is affirmed. No error. Affirmed.