Sanford Real Estate, Loan & Insurance v. Gavin

Hoke, J. On careful examination of the record we find no reason for disturbing the results of the trial. It is the recognized principle here that on a written endorsement or transfer of a negotiable instrument, and as between the immediate parties thereto, parol evidence is competent to establish stipulations and conditions affecting their rights, and the plaintiffs’ objection to the admission of such evidence was therefore properly overruled. Kernodle v. Williams, 153 N. C., 475; Aden v. Doub, 146 N. C., 10; Penniman v. Alexander, 111 N. C., 427; Braswell v. Pope, 82 N. C., 57; Kerchner v. McRae, 80 N. C., 219. In Penniman"s case, supra, the general principle is stated as follows: “The maker of a promissory note, or other similar instruments, if sued by the payee may show as between them a collateral agreement putting the payment upon a contingency, and it is competent also for a defendant sued as acceptor of such instrument to show in his defense the condition of his acceptance.” Nor can the exception be sustained that the defense presented and the parol evidence offered in its support, are in contravention of the written stipulations of the deed of trust. If the plaintiffs had shown themselves to be the unqualified owners of the note sued on, as for instance, endorsers for value and without notice, the ¡position would be deserving of consideration, but under the defense presented and evidence in question, it has been established by the verdict that on the contract of endorsement made after the deed of trust and affecting only the distribution of the proceeds, plaintiffs agreed that *17 tbe note assigned to them should share in the proceeds only after the other four notes, amounting to $12,000 and interest, were fully paid. The parties had a right to make this a subsequent contract modifying the stipulations of the deed of trust. It is not an agreement required to be in writing, and to our minds no reason can be suggested why such an agreement should not be given effect. Faust v. Rohr, 167 N. C., 360; 4 Page on Contracts (2 ed.), sec. 2484; 6 R. C. L., 299. True that such a contract, like others, unless under seal, require a consideration to support it, but on the evidence such a consideration appears from the fact that the plaintiff thereby .acquired the note that he sues on. And if it should be referred to the rights claimed in plaintiffs’ favor for compensation in effecting the original sale, the stipulations .by which the note was obtained and postponing payment could well be upheld as a proper compromise and adjustment of a bona fide dispute between the parties as to the amount due. Fisher v. Lumber Co., 183 N. C., 485-489, citing, among other authorities, Dunbar v. Dunbar, 180 Mass., 170; Dickerson v. Dickerson, 19 Ga. App., 269; 6 R. C. L., 662, Title Contracts, sec. 71; 5 R. C. L., Title Compromise, sec. 13. It-is further contended for appellant that the written contract which had been lost could not be made available in support of defendant’s position without allegations upon which to rest it, but this, in our opinion, does not at all correctly interpret the'record. The contract relied upon by defendant was made in parol and the memorandum in writing which only one of defendants made afterwards was no doubt for the purpose of preserving the evidence in available form. The written paper was not relied upon as the basis of recovery, but was only received as evidence in support of the verbal contract already entered into, and was undoubtedly competent as evidence in corroboration of the oral testimony of both Bright and Gavin, tending to establish the agreements as alleged. Gooding v. Moore, 150 N. C., 195. Even if the written paper was the basis of the defense and had been lost the position of appellant could not be upheld; a written paper- conferring or creating an absolute legal right may be enforced by action at law though lost. Fisher v. Webb, 84 N. C., 44. It is only when it becomes necessary to have an instrument corrected or canceled for fraud, mistake, and the like, by invoking the equitable powers of the court for the purpose, that the pertinent facts must be alleged before proof can be offered. But no such question is presented in this case where, as stated, a definite legal right was acquired by contract at the time of the assignment and this right has been established by the verdict of the jury. • There is no error and the judgment for defendant is affirmed.. No error.