Cauley v. . Dunn

Clark, C. J. This action is brought upon the following bond: $114.60. KinstoN, N. C., October, 1904. Two years after date I promise to pay Harriet Cauley $114.60. Value received. Payable at the Dime Bank, Kinston, N. C. Chas. E. DuhN. [seal] No. 43. Due 17 October, 1906. The defendant’s plea before the justice was as follows: “The defendant did not deny the note, but offered evidence to show that the plaintiff had agreed that he might pay in installments until the note was paid. The plaintiff denied any such agreement.” The defendant asked in the Superior Court to be allowed to amend his plea and set up “no consideration.” The court stated it would hear the evidence and then pass upon the motion, which was assented to by *33 botb parties, and after bearing tbe evidence tbe court declined to allow tbe defendant to amend bis pleadings. Tbe defendant excepted, but tbe amendment was a matter in the4discretion of tbe judge and not reviewable. Rev., 507; Forbes v. McGuire, 116 N. C., 449. Besides, bis evidence did not support tbe amendment, if it bad been allowed. A promise to pay a debt barred by bankruptcy is upon a sufficient consideration. Shaw v. Burney, 86 N. C., 331; 9 Cyc., 362. Tbe defendant admitted tbe execution and delivery of tbe note and tbat tbe entire written portions of tbe note sued on were in bis own bandwriting, including tbe words “Due 17 October, 1906.” Tbe plaintiff testified tbat from tbe savings of ber labor sbe sent tbe defendant small sums of money to keep for ber, amounting in tbe aggregate to $114.60, and tbat wben sbe went to bim to get ber money be gave ber tbe note sued on; tbat after sbe bad repeatedly demanded payment be did on one occasion offer to pay ber $1 on tbe note, but sbe refused to take so small a sum as a payment on tbe same. Tbe defendant testified tbat after be bad been discharged in bankruptcy be gave tbe plaintiff tbe note sued on witb tbe understanding tbat be would pay tbe same “wben be got on bis feet”; tbat be received tbe $114.60 from plaintiff before be was adjudged a bankrupt. Tbe court charged tbe jury tbat if they believed tbe entire evidence, then they should answer tbe issue set out in tbe record, $114.60, witb interest from 17 October, 1906.” Tbe defendant excepted, but there is no error. Tbe court did not “direct a verdict,” though it might have done so. S. v. Riley, 113 N. C., 650, citing U. S. v. Taylor, 3 McCrary, 500. Nothing is better settled than tbat “A written contract cannot be varied, altered, or contradicted by a contemporaneous parol agreement.” Tbe plaintiff seems to have been a colored woman, making small"'savings from ber daily labor which sbe intrusted from time to time to tbe defendant, who is a bank presidént. There is no pleading, or evidence, of fraud or imposition by tbe plaintiff, or tbat tbe instrument was drawn erroneously by mutual mistake of fact or omitting an essential part thereof, or any other ground of equitable defense. Indeed, tbe defendant testified tbat be made out tbe note himself. No error.