Holland v. . Dulin

Stacy, C. J. It is tbe contention of H. L. Dulin that be stands in tbe shoes of Anderson-Dulin-Yarnell Company with respect to tbe Holland notes and deeds of trust, because tbe money loaned by him to Fisber on 29 December, 1925, was advanced to take up tbe note beld by tbe corporation; that tbe collateral transferred to bim was a continuing-security for tbe original indebtedness; and that tbe note executed to bim was but an evidence of tbe original debt. But tbe note beld by Anderson-Dulin-Yarnell Company was not transferred or assigned to Dulin. Tbis obligation was canceled, and Fisher executed a new note direct to Dulin for an amount in excess of tbe corporation’s debt. Dulin in turn gave Fisber a written receipt for tbe collateral “received of W. B. Fisber,” which was more than that originally, beld by tbe corporation, additional collateral having been demanded and put up. “Mr. Degroat brought tbe collateral (beld by tbe corporation) there and banded it to me (Fisber testifying) and I banded it to Mr. Dulin after a receipt was given.” Tbe Holland notes were past due and paid at tbis time. In no view of tbe written evidence in tbe case can Dulin maintain tbe position of a bolder in due course of tbe Holland notes. He took them after'maturity, and, therefore, subject to tbe equities of tbe plaintiffs. Barnes v. Crawford, 201 N. C., 434, 160 S. E., 464; Sykes v. Everett, 167 N. C., 600, 83 S. E., 585; Bank v. Loughran, 126 N. C., 814, 36 S. E., 281. Tbe case turns on what took place between Dulin and Fisber on 29 December, 1925. It nowhere ajipears from tbe record that Anderson-Dulin-Yarnell Company was a party to tbe agreement of tbis date. Fisher’s indebtedness to the corporation was paid, bis note canceled and delivered up, together with tbe collateral beld as security; tbe corporation bad no further interest in tbe matter. Fisber pledged tbe collateral anew to Dulin, with other security not beld by tbe corporation, to secure tbe payment of tbe note given to bim. Two days later, Dulin wrote Fisber on behalf of tbe corporation and expressed gratification over tbe fact “that when you were here tbis week you were in position to settle everything owing to Anderson-Dulin-Yarnell Company with interest on all past due business and your account was closed up in full and in a very, very satisfactory way.” Tbis was Dulin’s understanding of tbe transaction at tbe time. It accords with Fisher’s understanding now. Cole v. Fibre Co., 200 N. C., 484, 157 S. E., 857. “Parties are far less liable to have been mistaken as to tbe meaning of their contract during tbe period while harmonious and practical construction reflects that intention, than they are when subsequent differ- *214 enees have impelled them to resort to law, and one of them then seeks a construction at variance with the practical construction they have placed upon it of what was intended by its provisions.” 6 R. C. L., 853. The case of Smith v. Godwin, 145 N. C., 242, 58 S. E., 1089, cited and relied upon by petitioners, is easily distinguishable. It is not an authority for the position urged. In the petition to rehear, the defendants for the first time suggest that under the equitable doctrine of subrogation, they are entitled to succeed to the rights of the creditor corporation in the securities held by it, as the money advanced by Dulin was used to pay Fisher’s debt, and cite in support thereof Liles v. Rogers, 113 N. C., 197, 18 S. E., 104, Bank v. Bank, 158 N. C., 238, 73 S. E., 157, Grantham v. Nunn, 187 N. C., 394, 121 S. E., 662. This is an afterthought and a shift in position. In the original brief, Dulin contended “that he was a holder in due course of the Holland notes by reason of a tri-lateral contract between himself, Anderson-Dulin-Yarnell Company and W. B. Fisher, under the terms of which, and to which all parties assented at the time, the notes were delivered to him by Anderson-Dulin-Yarnell Company, who held the same as a purchaser in due course.” On this theory the case was heard and determined in the court below and on appeal. A party is not permitted to try his case in the Superior Court and then ask the Supreme Court to hear it on another and different theory. Shipp v. Stage Lines, 192 N. C., 475, 135 S. E., 339; Walker v. Burt, 182 N. C., 325, 109 S. E., 43. A fortiori, the change will not be permitted between the decision here and a petition to rehear. Jolley v. Telegraph Co., 205 N. C., 108, 170 S. E., 145; Rule 44, Rules of Practice in the Supreme Court, 200 N. C., 838. The case was correctly decided on the record as presented. Petition dismissed.