Kerchner v. . McRae

Dillard, J. (After stating the ease.) The objection to the admission of parol testimony in support of the second issue was properly overruled by the court below. The general rule is that parol testimony is inadmissible to add to, vary or contradict a written contract; but the rule is restricted to cases in which the parties express in writing the entire stipulations agreed on, and the extent of the rule is established by the writers on evidence and by various decisions of this court. In Twidy v. Saunderson, 9 Ire. 5, the plaintiff hired a slave to the defendant, and he gave his bond for the hire; and at the time, it was agreed as a part of the contract that the slave was not to he risked on water or be carried out of the county of Tyrrell; but Saunderson hired the slave to another and he carried him to Martin county where he was killed. Twidy sued for the violation of the stipulation not to carry the slave out of the county, and it was objected that the bond contained a memorial of the whole agreement, and parol testimony was inadmissible. On appeal, the admission of the evidence *222 objected- to was held propeí, on the ground that the bond for the hire did not contain the entire agreement. In Manning v. Jones, Busb. 368, a vendee of land conveyed the same by deed to the purchaser, agreeing at the time and as a part of the contract to make certain repairs, which he failed to make, and on being sued for such failure, it was objected that the deed contained no such stipulation, and that parol evidence of the promise to make repairs could not be admitted. On appeal, it was ruled in this court that the evidence was admissible. Besides these two cases there have been many others, all referring to and approving them; and, from the principle thus settled, we conclude that His Honor properly admitted parol testimony in support of the second issue. Independently of the admissibility of the parol testimony on said issue upon the grounds above set forth, the issue involved an inquiry into the truth of the alleged agreement of Charles McRae at the time of the execution of the bond sued on, to give defendants a credit on their bond for the cotton, and no objection being made to the issue, it is not perceived how any evidence tending to prove the same could be held incompetent, whether it was parol or otherwise. The agreement aforesaid, if made, was a stipulation on the part of Charles McRae and was in no sense included in the bond sued on, and the defendants in case they should establish it, were entitled as for a counter-claim or set-off to have a credit for the cotton; and to prove their right to such credit, it was competent to establish -the agreement on the part of Charles McRae by any relevant legal testimony within the defendants’ power. We therefore hold that there was no error in admitting the testimony. As to the grounds on which a new trial was asked, they did not, singly or altogether, authorize a grant of the motion. The first ground is already disposed of, and as to the complaint of the judge’s failure to stop defendants’ counsel *223 in his argument to the jury on the point of their liability in their individual character, it does not appear that the failure of the judge did or by possibility could have operated to the injury of the plaintiffs. The case of appeal states that the plaintiffs’ counsel in his argument urged to the jury, that it would be no hardship on defendants if they were held liable, and in reply, the defendants’ counsel urged that it would be a great hardship if they were held liable, and insisted that they never intended to bind themselves individually. It was discretionary in the judge to stop the counsel at the time if his remarks were improper, or not having done so then, he might correct the matter in his charge. And the case states that the judge in his charge informed the jury that the question of liability of defendants was a matter of law for the court after their verdict, and that they must disregard the remarks of defendants’ counsel. It therefore appears to this court that the plaintiffs -were not prejudiced by the failure of the judge to stop the counsel in the course of his argument. As to the direction of the judge to the jury, to decide the issues submitted to them by a preponderance of the evidence, it is uniformly so laid clown to juries in civil actions',' and therein no error was committed. The plaintiffs having failed to get a new trial awarded them, thereupon moved the court for judgment for the balance of the bond declared on after deducting $3,000 as of the date thereof for the cotton, and His Honor disallowed the motion, holding that defendants were not liable indi» vidually on the bond. In this refusal of judgment as prayed, His Honor was in error. It is ruled in Hailey v. Wheeler, 4 Jones, 159; McKoy v. Royal, 7 Jones, 426; Beatty v. Gingles, 8 Jones, 302, and in the more recent cases of Kessler v. Hall, 64 N. C., 61, and Hall v. Craige, 65 N. C., 51, that executors are responsible in their representative character on contracts originating in testator’s lifetime, but in *224 causes of action wholly occurring after testator’s death, the executors are liable individually. And in the last case above mentioned, it is held that if an executor confess a judgment as executor, the judgment will bind him individually, and the words “as executor” will be rejected as surplusage. The judgment of the court below disallowing the motion of plaintiffs for judgment, is reversed, and judgment will be entered in this court in favor of the plaintiffs for the balance due on the bond of defendants after deducting $3,000 as of the date of the bond. Error. Judgment accordingly.