Bell v. Chadwick

• Decision Date: 16 October 1946
• Docket Number: 308
• Citation: 39 S.E.2d 743,226 N.C. 598
• Parties: BELL et al. v. CHADWICK et ux.
• Court: North Carolina Supreme Court

39 S.E.2d 743

226 N.C. 598

BELL et al. v. CHADWICK et ux.

No. 308

Supreme Court of North Carolina

October 16, 1946

Civil action to recover on promissory notes or bonds and to foreclose deed of trust given to secure their payment.

It is alleged in paragraph 3 of the complaint that on December 3 1929, the defendant, Harry B. Chadwick, then unmarried executed and delivered to plaintiffs, E. E. Bell and J. K Warren, six promissory notes or bonds in the aggregate sum of $2,608.40 (severally listed as bonds and showing maturity dates from one to five years after date of making) 'all * * * identical in language' (so far as presently material) as follows:

'New Bern, N. C., December 3, 1929.

On or before * * * after date, I promise to pay to the order of E E. Bell and J. K. Warren * * * with interest after maturity * * * expressly waiving any protest * * * Secured by Deed of Trust of even date herewith. For value received.

Due * * *

Harry B. Chadwick (Seal)'

In the answer of defendants, the allegations of paragraph 3 of the complaint are admitted. The defendants further plead however, that the notes in suit were not under seal, and were therefore barred by the three-year statute of limitations.

This action was instituted August 30, 1940.

At the time of trial, the death of J. K. Warren was suggested, and his administratrix came in as party plaintiff and duly adopted the complaint.

In support of the defendants' plea, Harry B. Chadwick offered to testify as follows: 'At the time I executed these notes it was not my intention to adopt the seal thereon as my seal. This word 'seal' didn't imply any special meaning at all to me. I didn't know what it meant at all. If Griffin or Warren knew they didn't call my attention to it. That is a printed 'seal' on the notes. It was then 29 years old. That is my signature on the notes. I never adopted the printed word 'seal' as my seal.'

This evidence was excluded, and its exclusion constitutes the sole exception for consideration on the appeal.

From verdict and judgment for plaintiffs, the defendants appeal.

R. E. Whitehurst and W. B. R. Guion, of New Bern, for plaintiffs-appellees.

R. A. Nunn and H. P. Whitehurst, both of New Bern, for defendants-appellants.

STACY Chief Justice.

As stated above, the only question presented for decision is the competency of Chadwick's proffered testimony that in executing the notes or bonds in suit, he did not adopt, or intend to adopt, as his seal, the printed word 'Seal' appearing in brackets at the end of the line opposite his signature. Williams v. Turner, 208 N.C. 202, 179 S.E. 806; Allsbrook v. Walston, 212 N.C. 225, 193 S.E. 151; Currin v. Currin, 219 N.C. 815, 15 S.E.2d 279; Baird v. Reynolds, 99 N.C. 469, 6 S.E. 377; Yarborough v. Monday, 14 N.C. 420. See, also, Aycock Supply Co. v. Windley, 176 N.C. 18, 96 S.E. 664.

Initially, it should be observed the defendant admitted, in answering the third paragraph of the complaint--and this admission was offered in evidence--that he executed the several notes or bonds in suit, 'all identical in language', and each bearing the word 'Seal' opposite his signature. The allegation and admission establish the word 'Seal' as a part of each instrument. They are therefore immune from amendment, modification, or contradiction by parol. Lumber Mutual Casualty Ins. Co. v. Wells, 226 N.C. --, 39 S.E.2d 741; Jefferson Standard Life Ins. Co. v. Morehead, 209 N.C. 174, 183 S.E. 606; Industrial Loan & Investment Bank v. Dardine, 207 N.C. 509, 177 S.E. 635; Stansbury's N.C. Evidence, Sec. 253.

When it is admitted, as it is here, that the defendant signed or executed several instruments under seal, he is bound by his admission. Davis v. Crump, 219 N.C. 625, 14 S.E.2d 666; Farmers' Peanut Co. v. Lucas, 206 N.C. 922 175 S.E. 176; State exrel. Lee v. Martin, 191 N.C. 401, 132 S.E. 14; Weston v. Royal Typewriter Co., 183 N.C. 1, 110 S.E. 581; Jones v. Norfolk Southern R. Co., 176 N.C. 260, 97 S.E. 48; Stansbury's N.C. Evidence, Sec. 177. It is true, the notes or bonds in suit contain no in testimonium clause, nevertheless they are alleged to be notes or bonds under seal, and this is...