Spencer v. . Bynum

Allen, J. The eighth and ninth findings of fact are determinative of the controversy between the plaintiff and the defendants, and we have no power to disturb them, if the allegations of the answer are sufficient to justify the admission of evidence upon which they are based, and if the evidence introduced is competent. An inspection of the answer shows that it alleges the agreement entered into at the time of the dissolution of the partnership in almost the same words that are used by the referee in his finding of fact, and’ we must therefore hold that the answer is sufficient. *123 We might dispose of tbe exceptions to evidence set out in tbe assignments of error upon tbe ground tbat tbe evidence objected to is immaterial and its admission harmless, because it appears from the record tbat tbe defendants offered ample evidence of tbe agreement tbat was not objected to, and this evidence embraced in tbe assignments is only as to two or three circumstances which could not reasonably have affected tbe result, but in our opinion all of tbe evidence tending, to prove tbe oral agreement was competent and comes within tbe principle stated in Nissen v. Mining Co., 104 N. C., 310, and approved in Anderson v. Corporation, 155 N. C., 134, tbat “When a contract is not required to be in writing it may be partly written and partly oral, and in such cases when tbe written contract is put in evidence it is admissible to prove tbe oral part thereof.” Tbe written contract introduced in evidence does not purport to contain tbe entire agreement, and is devoted exclusively to clothing tbe defendant Bynum with tbe power and tbe authority to take' charge of tbe assets of tbe partnership and apply them to tbe payment of debts and to distribute any balance among tbe partners, leaving in parol tbe agreement among tbe partners tbat.they would lose any amount due by tbe partnership to either one of them, and by proving tbe parol agreement tbe written contract is not changed or varied, and may be enforced as it is written. This disposes of tbe first, second, third, fourth, and fifth assignments of error, and tbe sixth assignment is formal, being entered for tbe purpose of preserving tbe other exceptions. It was also urged upon tbe argument tbat the agreement embodied in tbe eighth finding of fact could not be enforced because there was no consideration to support it, and conceding tbat this question may be presented by tbe exception to tbe judgment, we think tbe position cannot be maintained. In Institute v. Mebane, 165 N. C., 650, tbe Court approved a quotation from 9 Cyc., 312, tbat “There is a consideration if tbe promisee, in return for tbe promise, does anything legal which be is not bound to do, or refrains from doing anything which be has tbe right to do, whether there is any actual loss or detriment to him, or actual benefit to tbe promisee or not,” and upon this principle tbe mutual promises for a dissolution of tbe partnership, tbe agreement of tbe defendants to forego any claim against tbe plaintiff on account of bis mismanagement of tbe business of tbe partnership, and tbe agreement upon tbe part of tbe defendant Bynum to purchase a large part of tbe property of tbe partnership for tbe purpose of enabling tbe partnership to pay its debts, although be paid no more than its value, furnish a consideration sufficient to support tbe agreement. *124 Tbe action bas been tried by a careful and accurate lawyer acting as referee, and bis findings and rulings bave been reviewed and approved by an impartial and learned judge, and upon an inspection of tbe whole record we find no reason for disturbing tbe conclusion they bave reached. Affirmed.