Elizabeth City Hotel Corp. v. Overman

CONNOR, J. On his appeal to this Court, the defendant relies chiefly on his exceptions to the exclusion of evidence tending to show that oral representations were made to him as inducements for his execution of the stock subscription agreement, which is in writing, and to the instruction of the court to the jury that if they believed all the evidence and found the facts to be as the evidence tended to show, they should answer the issue, “$1,000, and interest”; and that, otherwise, they should answer the issue, “Nothing.” Neither of the assignments of error based on these exceptions can be sustained. *341 It is sufficient to say that the oral representations which the excluded evidence tended to show were made to the defendant prior to his execution of the stock subscription agreement, are all promissory in their nature. They are, therefore, not sufficient as a foundation for the first defense relied on by the defendant. Colt v. Conner, 194 N. C., 344, 139 S. E., 694; Colt v. Springle, 190 N. C., 229, 129 S. E., 449; Pritchard v. Dailey, 168 N. C., 330, 84 S. E., 392; Cash Register Co. v. Townsend, 137 N. C., 652, 50 S. E., 306. In the absence of evidence tending to show that the execution of the stock subscription agreement was procured by false and fraudulent representations, the evidence offered by the defendant was incompetent for that it tended to vary the terms of stock subscription agreement which is in writing. In Raleigh Improvement Co. v. Andrews, 176 N. C., 280, 96 S. E., 1032, it is said: “The fact that this is a subscription for stock does not take the case out of the usual rule. It seems to be generally agreed that when a subscription contract is reduced to writing and signed, all oral agreements, whether prior or contemporaneous, are merged in it, and parol evidence of them cannot be received to vary the legal import of the writing.” In addition to the foregoing reasons, the evidence was properly excluded, because defendant had expressly agreed that his entire contract was expressed in the agreement which he had signed. Colt v. Kimball, 190 N. C., 169, 129 S. E., 406. There was no error in the instruction of the court to the jury, for all the evidence, if believed, shows that the transaction resulting in the subscription by defendant for shares of the capital stock of plaintiff corporation, was exempt from the provisions of the Capital Issues Law of North Carolina, in force at the date of the subscription. Subsection 8, of section 4, chapter 190, Public Laws 1925. No expense was incurred, and no commission, compensation or remuneration was paid or given for, or in connection with, the sale or disposition of the stock of plaintiff, a domestic corporation. The subscription was made prior to the incorporation of plaintiff. On the facts shown by all the evidence, the transaction was exempt from the statute, by its express provisions. See Durham Citizens Hotel Corporation v. Drakeford, 196 N. C., 808, 145 S. E., 921, and Durham Citizens Hotel Corporation v. Dennis, 195 N. C., 420, 142 S. E., 578. The amount paid by the plaintiff corporation to the Hockenbury System, Incorporated, after its incorporation, was for services rendered to the Elizabeth City Hotel Committee, which alone, through its agents, solicited subscriptions to the capital stock of plaintiff. Neither the committee nor its agents were paid commissions for soliciting subscriptions. *342 There was no evidence tending to show that the Hockenbury System, Incorporated, was paid any sum by the committee or by the plaintiff for or in connection with the sale of shares of the capital stock of plaintiff corporation. The judgment is affirmed. No error.