Basnight v. Southern Jobbing Co.

WalKRR, J., after stating the case: The decision of this case must depend upon what appears in the pleadings. The plaintiff alleges the execution of the contract sued on, which •is admitted by the defendants in their answer. The terms of that contract are plain and unambiguous. The defendants explicitly agree therein with the plaintiff that they will become sureties of the jobbing company for the strict performance of the obligation assumed by the company, which is that, upon demand, and one year from the date of the contract, the jobbing company will pay to the plaintiff the sum of $5,000 for his fifty shares of stock. There can be no doubt as to the correct meaning of this language. It is an express and unconditional promise, in their individual character, that the money shall be paid at the appointed time. In their answers the defendants deny this allegation and aver that they were not to be liable personally or individually. This is a square contradiction of the terms of the contract and of the obligation to pay the money themselves, which they assumed by the execution of the instrument. The issues were framed and submitted to the jury in exact accordance with the averments in the pleadings, and oral evidence which was offered by the defendants to support the affirmative of those issues was admitted by the court. The evidence was incompetent, and the ruling of the court in setting aside the verdict and giving judgment for the plaintiff was clearly right. There is no rule better settled in the law than that oral evidence is not admissible to vary or contradict a written instrument, unless there has been fraud or mistake, in which *357 case it must be reformed by an independent action or by way of affirmative defense in tbe same action. It cannot be changed by a collateral attack in a suit upon the instrument itself. Etheridge v. Palin, 72 N. C., 213; Ray v. Blackwell, 94 N. C., 10; Terry v. Railroad, 91 N. C., 236; Moffitt v. Maness, 102 N. C., 457; Bank v. Moore, 138 N. C., 529; Mudge v. Varner, 146 N. C., 147. In Meekins v. Newberry, 101 N. C., 18, it is said to be “a settled rule that when the parties to a contract, reduce the same to writing, in the absence of fraud or mutual mistake, pi’operly alleged, parol evidence cannot be heard to alter, contradict or modify it.” Evidence, under this rule of exclusion, is never admitted, if the wording is clear or if the evidence offered is in direct contradiction of the intrinsic meaning of the language of the contract. Browne on Parol Evidence, p. 199, secs. 55-56; Gilbert v. Moline Plow Co., 119 U. S., 491; The Delaware, 14 Wall., 579; Kean v. Davis, 21 N. J. L., 683. If the terms of the contract clearly and sufficiently determine the intent and meaning of the parties, the form of the signature is not important and will not bring the case within any exception to- the rule. Fowle v. Kerchner, 87 N. C., 49; Hicks v. Kenan, 139 N. C., 337. There are decisions of this and other courts to the effect that it may be shown by parol evidence^ that an obligation was not to be assumed except upon a certain contingency, or that the liability should be discharged in a certain way, these being stipulations intended to be a part of the contract, but not reduced to writing by the parties. Braswell v. Pope, 82 N. C., 57; Penniman v. Alexander, 111 N. C., 427 (affirmed in 115 N. C., 555); Kerchner v. McRae, 80 N. C., 219; Evans v. Freeman, 142 N. C., 61; Typewriter Co. v. Hardware Co., 143 N. C., 97. Other cases are cited in Braswell v. Pope, supra, and Evans v. Freeman, supra. If the stock only was to be “liable” for the debt, we do not see why the defendants affixed their official titles to the *358 signatures. Tbis does not indicate/ in the least, that they were limiting their liability to the stock held by them. If it was intended that the stock should be applied to the payment of the debt, and that. there should be no personal liability, the company would be its own surety, and, besides, the plaintiff would have no security at all for his debt against the company, as the debt would in law have to be paid be- • fore any of the assets of the corporation could be used to redeem its stock. If the stock was a security in name, it would be valueless as a security in fact. If the parties signed, as they did, for the purpose of representing the corporation, the same result would follow, but they do not profess- to have executed the contract for the company. We find no error in the ruling of the court. No Error.