Merchants & Farmers National Bank v. McElwee

Clark, J. — after stating the facts: The refusal of the motion to amend rested in the sound discretion of the Court and is not reviewable. Henry v. Cannon, 86 N. C., 24, and numerous cases there cited. Indeed, it seems that the defendants made no exception thereto at the time, and it is waived. The Code, § 412 (2); State v. Gee, 92 N. C., 756. The only error assigned is the refusal to submit the- issues tendered by the defendants relative to the alleged agreement by plaintiff to assign the Carlton & McElwee judgment as part consideration of the notes. The contract purports to embrace the whole agreement of the parties. In one of the latest cases on this subject (Meekins v. Newberry, 101 N. C., 17), the present Chief Justice says: “ It is a settled rule of the law that when the parties to a contract reduce the same to writing, in the absence of fraud, or mutual mistake, properly alleged, parol evidence cannot be received to contradict, add to, modify or explain it.” *308 In cases where the law does not require the contract to be in writing, if only a part of the contract is reduced to writing it is competent to prove the unwritten part by parol. But that principle has no application here. The contract contains an agreement by defendants’ testator to pay the sum named “ for the property,” and recites and describes the notes as executed for such purchase money. Proof that they were given in part only for the purchase money of the land, would “ contradict, add to, or modify,” the written agreement of the parties. In the absence of an allegation in the answer, that the consideration of the note was incorrectly recited, of a part of it omitted, by fraud, accident, or mutual mistake, such proof was inadmissible. Etheridge v. Palin, 72 N. C., 213; McMinn v. Patton, 92 N. C., 371; Ray v. Blackwell, 94 N. C., 10; Cadell v. Allen, 99 N. C., 542. It -was no error, therefore, to refuse to submit issues upon an equitable defence not properly set up in the answer. Parker v. Morrill, 98 N. C., 232; Moffitt v. Maness, 102 N. C., 457. Affirmed.