Braswell v. Pope

• Decision Date: 31 January 1880
• Court: North Carolina Supreme Court
• Parties: A. BRASWELL v. KINDRED POPE.

82 N.C. 57

A. BRASWELL

v.KINDRED POPE.

Supreme Court of North Carolina.

January Term, 1880.

CIVIL ACTION tried at Spring Term, 1879, of EDGECOMBE Superior Court, before Eure, J.

It was admitted in the pleadings that the defendant held two notes against the plaintiff amounting to about eighteen hundred dollars, but the plaintiff in this action avers that he owes the defendant nothing, and brings this suit to recover an amount alleged to be due upon a parol agreement entered into between the parties and relating to the manner in which said notes were to be discharged. The evidence in regard to this agreement (set out in the opinion) was objected to on the ground that it contradicted the terms of the contract as contained in said notes. The court sustained the objection. Judgment, appeal by plaintiff.

Messrs. Howard & Nash and J. L. Bridgers, jr., for plaintiff .

Messrs. W. B. Rodman and Fred. Philips, for defendant .

DILLARD, J.

In this action and another between the same parties with the names reversed, a trial by jury was waived and by consent of parties the judge found the facts and decided the questions of law arising, with the right of appeal reserved as to any exceptions to the evidence, and as to His Honor's conclusions of law, and with an agreement that the two actions should be heard together as if constituting but one case, and that the cause of action of the plaintiff in each case should be considered a counter-claim to the suit of the other.

At the trial the plaintiff, Braswell, in order to prove the the contract set up in the complaint, introduced John Norfleet, who testified that the parties came to his office on the 4th of July, 1874, and stated that they had made a contract of which they desired to make him a witness; that they stated to him that Pope had agreed if Braswell would give his note for the amount of a judgment and several notes he held on one Odom, he Pope, would lend him $500 in money and take his note therefor, and would hold both notes until the termination of a suit Braswell then had against one Carter Pope, and as soon as he recovered judgment he and the plaintiff would exchange said two notes for the judgment which might be recovered against Carter Pope and a mortgage held by the plaintiff for its security; and it was further proved by this witness that plaintiff executed in his presence the two notes agreed on, and the defendant then and there agreed that he would accept an assignment of the judgment when recovered and the mortgage for its security, and surrender to plaintiff his notes, and pay the difference, if any, in money.

The testimony of Norfleet was objected to as inadmissible on the ground that it varied or contradicted the contract as expressed in the notes executed by Braswell to the defendant, but the judge reserved the question made and proceeded to hear the evidence of the witness, and upon his and the other evidence adduced, to find the facts. Upon the facts being found, each party moved for judgment,--Braswell that his judgment and mortgage on Carter Pope, credited by what he had received of the mortgage fund, be applied in extinction of his two notes in the hands of the defendant with a judgment for the difference in his favor and for other alternative relief; and defendant Pope, that His Honor, on the question reserved as to the competency of the witness, Norfleet, hold him incompetent and grant him judgment for the entire amount of his two notes in suit.

On consideration of the respective motions His Honor ruled the testimony of Norfleet inadmissible, and overruling plaintiff's motion dismissed his action with cost and pronounced judgment for the defendant for the amount of the two notes sued on against the plaintiff.

On the argument of the appeal in this court it is assigned for error that His Honor, on the question reserved, ruled the evidence of Norfleet inadmissible on the ground of its being contradictory to the contract expressed in the two notes of Braswell to the defendant. We think the evidence was not liable to the objection urged against it, and the same should have been received and considered. The two notes were for money, and proof by Norfleet of an agreement on the part of Kindred Pope, as soon as Braswell could reduce his claims on Carter Pope to judgment, to become the owner of the judgment and an existing mortgage for its security by assignment, and to surrender to plaintiff his two notes, does not, as it seems to us, vary or contradict the terms of the contract as expressed in said notes. The proof excepted to did not show, nor tend to show, that the notes were not for money, but its effect and purpose were to establish merely that they should be surrendered by defendant and accepted by plaintiff as so much money in part payment for the judgment on Carter Pope when one should be recovered.

Besides the ground of admissibility in the fact of the evidence not varying or contradicting the terms expressed in the notes, it is a rule in the law of evidence that where the original contract is verbal and entire, and a part only of it is reduced to writing, the other parts of it may be established by parol evidence, and under this rule the evidence of the witness was admissible. This rule is laid down in 1 Greenl, § 284, and the same has been recognized and applied in divers cases by our courts, prominent among which are Twidy v. Saunderson, 9 Ire., 5; Manning v. Jones, Busb., 368; Daughtry v. Boothe, 4 Jones, 87; Perry v. Hill, 68 N. C., 417, and Kerchner v. McRae, 80 N. C., 219. The proof offered was proof of a witness called by the parties to witness their contract, and after...