F. L. Voliva Hardware Co. v. Kinion

• Decision Date: 17 February 1926
• Docket Number: 12.
• Citation: 131 S.E. 579,191 N.C. 218
• Parties: F. L. VOLIVA HARDWARE CO. v. KINION.
• Court: North Carolina Supreme Court

131 S.E. 579

191 N.C. 218

F. L. VOLIVA HARDWARE CO. v. KINION.

No. 12.

Supreme Court of North Carolina

February 17, 1926

Appeal from Superior Court, Beaufort County; Calvert, Judge.

Action by the F. L. Voliva Hardware Company against W. C. Kinion. Judgment for plaintiff, and defendant appeals. New trial.

Civil action to recover on a note executed by defendant to plaintiff, and to foreclose a chattel mortgage given to secure the payment thereof. Upon denial of liability, based on an allegation of fraud in procuring the execution of said note and mortgage, there was a verdict and judgment for plaintiff, from which defendant appeals, assigning errors.

Rule that verbal agreement inadmissible to vary terms of written contract inapplicable, where contract's validity challenged for fraud.

Thomas S. Long, of Belhaven, and Wiley C. Rodman, of Washington, N C., for appellant.

J. D Paul, of Washington, N. C., Tooly & McMullan, of Belhaven and Manning & Manning, of Raleigh, for appellee.

STACY C.J.

On June 8, 1922, plaintiff held a judgment against the defendant for $200, upon which execution had been issued and was then in the hands of the sheriff of Beaufort county. Plaintiff testified that, in consideration of withdrawing the execution and as further security for its judgment debt, the defendant executed his note, on the date above mentioned, due November 11 thereafter, for $220.53, being the amount of said judgment with interest and costs, together with a chattel mortgage to secure the payment of same at maturity. This suit is to recover on said note and to foreclose the chattel mortgage given as security therefor.

The defendant alleges, in defense and by way of counterclaim that the real consideration for said note and mortgage was the agreement on the part of the plaintiff to cancel its $200 judgment, which at that time was a lien against defendant's land, and thus enable him to negotiate a loan of sufficient amount to care for all his obligations including several mortgages on his farm, and that, by reason of plaintiff's failure and refusal to carry out its agreement--which defendant alleges was fraudulently made as a means to induce him to execute the note and mortgage now in suit--the defendant was unable to negotiate the loan which he otherwise would have effected, and, as a consequence of plaintiff's fraud and deceit, the defendant alleges that he has lost several thousand dollars in not...