Galloway v. Thrash
| Decision Date | 10 October 1934 |
| Docket Number | No. 121.,121. |
| Citation | 176 S.E. 303,207 N.C. 166 |
| Court | North Carolina Supreme Court |
| Parties | GALLOWAY. v. THRASH et al. |
Appeal from Superior Court, Buncombe County; Schenck, Judge.
Action by M. W. Galloway, administrator, against P. H. Thrash and others. From a judgment of the superior court reversing a ruling of the county court holding certain evidence inadmissible, and remanding the cause for a new trial, plaintiff appeals.
Affirmed.
Civil action instituted in the general county court of Buncombe county to recover on $32,518.83 note, executed by defendants September 1, 1925, payable to order of J. M. Thrash, due two years after date, and secured by deed of trust on real estate.
Defendants pleaded (1) partial failure of consideration, and (2) that said note represented an advancement from J. M. Thrash to his son and daughter-in-law, defendants herein, which was to be taken into account in the settlement of his estate. The said J. M. Thrash died intestate in August, 1930.
It was held in the general county court that the first defense was available pro tanto, but that the evidence offered to support the second defense was inadmissible under the rule which prohibits the introduction of parol evidence to contradict, add to, or vary the terms of a written instrument. Carlton v. Cent Oil Co., 206 N. C. 117, 172 S. E. 883; Jobbers' Overall Co. v. C. S. Hollister Co., 186 N. C. 20S, 119 S. E. 1; Merchants' Nat Bank v. Andrews, 179 N. C. 341, 102 S. E. 500; Cherokee County v. Meroney, 173 N. C. 653, 92 S. E. 616; Walker v. Venters, 148 N. C. 388, 62 S. E. 510; Moffitt v. Maness, 102 N. C. 457, 9 S. E. 399; Ray v. Blackwell, 94 N. C. 10.
On appeal to the superior court, the evidence offered in support of the second defense was held to be competent; whereupon the ruling of the county court in this respect was reversed and the cause remanded for a new trial. From this ruling, the plaintiff appeals.
T. Coleman Galloway, of Brevard, and George H. Wright, of Asheville, for appellant
Robert M. Wells, of Asheville, for appellees.
It is competent, as between the parties, to show that a note given by a son to his father represented an advancement and was to be paid by crediting it against the son's anticipated share of the father's estate? The answer is, "Yes."
It is established by the decisions in this jurisdiction that the rule which prohibits the introduction of parol evidence to vary, modify, or contradict the terms of a written instrument, is not violated:
First by showing a conditional delivery of said instrument. Thomas v. Carteret County, 182 N. C. 374, 109 S. E. 384; Garrison v. J. I. Case Threshing Machine Co., 159 N. C. 285, 74 S. E. 821; Kernodle v. Williams, 153 N. C. 475, 69 S. E. 431, 34 L. R. A. (N. S.) 934.
Second, by showing failure of consideration. American Agricultural Chemical Co. v. Griffin, 202 N. C. 812, 164 S. E. 577; Swift & Co. v. Aydlett, 192 N. C. 330, 135 S. E. 141; Pate v. Gaitley, 183 N. C. 262, 111 S. E. 339; C. S. § 3008.
Third, by showing mode of payment and discharge as contemplated by the parties, other than...
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