Carolina Nat. Bank v. Wilson, (No. 12669.)

• Court: United States State Supreme Court of South Carolina
• Writing for the Court: THURMOND
• Citation: 150 S.E. 765
• Parties: CAROLINA NAT. BANK . v. WILSON et al.
• Docket Number: (No. 12669.)
• Decision Date: 04 February 1929

150 S.E. 765

CAROLINA NAT. BANK .
v.
WILSON et al.

(No. 12669.)

Supreme Court of South Carolina.

May. 24, 1929.

Appeal from Richland County Court; M. S. Whaley, Judge.

Action by the Carolina National Bank against W. Harold Wilson, Cole L. Blease, and another. Judgment for plaintiff, and defendant last named appeals. Affirmed.

C. T. Graydon, of Columbia, for appellant

Moorman & Moorman and R, B. Herbert, all of Columbia, for respondent.

THURMOND, A. A. J. This action was instituted in the county court of Richland county by the Carolina National Bank against Cole L. Blease as an indorser of a promissory note for $1,000, executed by W. Harold Wilson September 29, 1924, and payable 90 days after date to. the order of said bank for value received.

The defendant set up what he called a conditional indorsement of the note, and offered testimony to prove the same, but upon objection made by plaintiff's attorneys, the testimony was excluded upon the ground that parol testimony was not admissible to vary the note, a written instrument

The complaint was in the usual form of a complaint on a negotiable note. The answer by the defendant reads:

"The defendant, Cole L. Blease, answering the complaint herein, says:

"I. That he admits the endorsement of said paper as set forth in said complaint, but alleges that said endorsement was made con-

[150 S.E. 766]

ditlonal, the original note having been endorsed by the father of W. Harold Wilson and John W. Conder; that said note became due while the endorsers were out of the city and that this defendant was requested to endorse the same temporarily and until the said endorsers returned and that when said endorsers had so returned it was agreed by and between the bank, the maker of the note and this defendant that this defendant should be released upon said endorsement, and this defendant alleges that he is in fact and in law released therefrom.

"Wherefore, defendant prays judgment that the complaint be dismissed as against him. C. T. Graydon, Attorney for Defendant Cole L. Blease."

Exceptions 1, 2, 3, 4, and 5 raise in one form or another but one issue, to wit, should parol testimony have been admitted to vary the note.

The defendant contends that his indorsement was conditional; the condition being that said note was to be destroyed upon return to the city of the indorsers of a former note to the bank, which represented the same debt that the present note evidences.

Extension of time for the payment of an obligation is sufficient consideration for a new note evidencing the same debt.

As between the same parties the defense of conditional delivery in a proper case may be set up. See Code of Daws of South Carolina, 1922, vol. 3, § 3667.

In Ware v. Allen, 128 U. S. 590, 9 S. Ct. 174, 32 L. Ed. 563, held:

"1. Where, before the signing of a written instrument, it was agreed between the parties thereto that it was to be of no effect unless, upon consultation with counsel named, the defendant should be 'assured that the transaction out of which it arose was lawful —held, that proof that they were advised by such counsel that such transaction was illegal shows that the instrument never went into effect; that the condition upon which it was to become operative never occurred.

"2. Held, further, that this is not a question of contradicting or varying a written instrument by parol testimony, but a case, well recognized in the law, by which an instrument, whether delivered to a third person as an escrow or to the obligee in it, is made to depend as to its going into operation upon events to occur or to...