Aden v. Doub

• Decision Date: 13 November 1907
• Citation: 59 S.E. 162,146 N.C. 10
• Parties: ADEN v. DOUB.
• Court: North Carolina Supreme Court

59 S.E. 162

146 N.C. 10

ADEN v. DOUB.

Supreme Court of North Carolina

November 13, 1907

Appeal from Superior Court, Forsyth County; Ferguson, Judge.

Action on a note by Joseph Aden against J. F. Doub. From a judgment for defendant, plaintiff appeals. Affirmed.

When the issues submitted fully present all the material matters in controversy, they are sufficient for the purpose of the trial.

This is an action brought to recover the amount of $257.35, and interest, alleged to be due by a note given by the defendant to the plaintiff as agent for a policy in the Security Life & Annuity Company for the sum of $5,000. At the time of the execution of the note, the parties entered into a collateral written agreement, as a part of their contract, to the effect that the defendant should have one month after the date of the note to determine whether he would take the policy, and if he decided not to accept it, then the note to be void. The court submitted to the jury certain issues, which, with the answers thereto, are as follows: "(1) Did the defendant execute the note described in the complaint? Ans. Yes. (2) At the time of the execution of said note, did the plaintiff execute the agreement set out in the answer? Ans. Yes. (3) Did the defendant, within one month from the execution of the note and agreement, notify the plaintiff that he would not accept the policy of insurance and offer to return the same and demand a return of the note? Ans. Yes. (4) What amount if any, is due from the defendant to the plaintiff? Ans. Nothing." The plaintiff excepted to the submission of the first three issues, and insisted that the fourth issue was sufficient to cover the matters in controversy. Upon the verdict, the court rendered a judgment for the defendant, and the plaintiff appeared.

J. E Alexander and G. H. Hastings, for appellant.

Watson, Buxton & Watson and Benbow & Hall, for appellee.

WALKER J.

There is nothing in this case, unless we greatly misunderstand it, but an issue of fact. The jury have found that the note was given subject to the written condition that the defendant might reject the policy within 30 days, upon due notice, which was given. The position taken by the plaintiff, that the evidence tended to contradict a written instrument, and besides a negotiable instrument, is clearly without any support in law. In the first place, the written agreement was made at the very time the note was given, as a part of the same transaction, and the plaintiff is the original payee. This does not bring the case within the rule of evidence by which it is forbidden to vary or contradict a written instrument, nor within that other rule protecting an innocent purchaser for value of a negotiable instrument. It is not a correct proposition in law, as stated in the plaintiff's prayer for instructions, that a negotiable instrument is of such high dignity, as a medium of exchange, that the parties cannot annex any lawful condition to its payment at the time it is given, when the action to recover it is between the original parties to it. The question is fully discussed in Evans v. Freeman, 142 N.C. 61, 54 S.E. 847. This suit is nothing more or less than an attempt by the plaintiff to recover from the defendant a sum of money, contrary to his express written agreement, which was executed cotemporaneously with the note, that the defendant should not be liable therefor, if he rejected the policy, which he did; that is, if the verdict is true, and there was strong evidence to support it.

The plaintiff moved in this court for a new trial, upon the ground that, since the trial of the cause, he had discovered other material evidence. We have examined this evidence, and find it to be merely cumulative to that introduced at the trial, and, besides it...