Merch.S& & Farmers& Nat. Bank Of Charlotte v. Mcei.Wee

• Decision Date: 02 December 1889
• Citation: 10 S.E. 295,104 N.C. 305
• Court: North Carolina Supreme Court
• Parties: Merchants' & Farmers' Nat. Bank of Charlotte v. McEi.wee et al.

10 S.E. 295

(104 N.C. 305)

Merchants' & Farmers' Nat. Bank of Charlotte

v.McEi.wee et al.

Supreme Court of North Carolina.

Dec. 2, 1889.

Parol Evidence.

In the absence of an allegation of fraud, accident, or mistake, a written contract for the sale of land cannot be modified by proof of a contemporaneous oral agreement that the sum named in the contract as the price of the land should also include other property not specified therein.¹

This was a civil action, tried before Brown, J., and a jury, at May term, 1889, of Iredell superior court. The complaint is upon an executory contract, a copy of which is annexed to the complaint, for the purchase of land, wherein Mary M. Alexander, the testator of the defendant Mary V. McElwee, contracted to pay a specified sum for said land, and executed notes therefor. The plaintiff asks judgment for balance due on said notes, and a sale of the land, if payment is not made by a day to be fixed by the court. The answer admits the written contract set up, but avers that defendants are informed and believe that the notes referred to in the contract, and sued on, were not given for the purchase money of the land only, but, by an agreement made at the time of signing said contract, embraced a certain judgment in the United States court, held by the plaintiff against one Carlton and the defendant J. H. McElwee, which plaintiff agreed to assign to defendant's testator; that the plaintiff afterwards receipted and canceled said judgment, and defendants ask to have the amount of such judgment credited upon the notes sued on. There is no allegation in the answer that this contemporaneous agreement was omitted from the written contract by fraud, accident, or mutual mistake. There are other allegations in the complaint and answer, but they have no bearing upon the question raised by the appeal. After both parties announced their readiness for trial, and after the pleadings in the cause had been read, the defendants moved the court to be permitted to amend their answer by inserting therein an allegation "that the judgment was omitted from the contract sued on by mistake and inadvertence." The court declined to allow such amendment. The defendants then tendered the following issues: "(1) At the time of the execution of the contract appended to plaintiff's complaint, was it agreed between Mary M. Alexander and the plaintiff that the Judgment on McElwee & Carlton was to be assigned to her? (2) Was any reference to said judgment left out of the contract by the inadvertence or mistake of the parties? (3) What was the amount of said judgment of which satisfaction was so entered? (4) Whatamount did the plaintiff receive, or should have received, from the notes of D. H. Bell, deposited as collateral security." Thecourt submitted issue No. 4...