Kernodle v. Kernodle Et Ux

• Decision Date: 31 October 1917
• Docket Number: (No. 327.)
• Citation: 93 S.E. 956
• Court: North Carolina Supreme Court
• Parties: KERNODLE. v. KERNODLE et ux.

93 S.E. 956

KERNODLE.

v.KERNODLE et ux.

(No. 327.)

Supreme Court of North Carolina.

Oct. 31, 1917.

Brown, J., dissenting.

Appeal from Superior Court, Alamance County; Kerr, Judge.

Action by L. L. Kernodle against J. D. Kernodle and wife. Judgment for defendants, and plaintiff appeals. No error.

This is an action on the following bond: "$1,866.00.

"One day after date we jointly promise to pay L. L. Kernodle eighteen hundred and sixty-six dollars, for value received. This October 3 1907.

"[Signed] J. D. Kernodle. [Seal.]

"Cora H. Kernodle. [Seal.]" The defendants in their answer admitted the execution of the bond, and set up the defense that the bond was intended to answer the purpose of a memorandum of the amount stated therein, which was only to be accounted for by J. D. Kernodle as an advancement upon the death of his father, the plaintiff provided sufficient funds should be left to him by his father for that purpose. The evidence of the defendants in support of their defense was objected to by the plaintiff, and exception taken to its admission. Both parties introduced evidence, and at the conclusion of the evidence his honor held that the burden of proof was on the defendants, and that they were entitled to open and conclude the argument before the jury, to which plaintiff excepted. There was a verdict and judgment for the defendants, and the plaintiff appealed.

W. H. Carroll, of Burlington, for appellant.

J. S. Cook and J. J. Henderson, both of Graham, S. M. Gattis, of Hillsboro, and Parker & Long, of Graham, for appellees.

ALLEN, J. [1] We have examined the full and complete brief of the learned counsel for the plaintiff, discussing the admissibility of parol evidence when a writing is in existence relating to the subject-matter, but we find the precise question presented by this record has been heretofore decided in favor of the defendants, and we rest our judgment on that decision. In Kernodle v. Williams, 153 N. C. 475, 69 S. E. 431, 34 L. R. A. (N. S.) 934, the plaintiff was the same as in this case, and the defendants were a daughter and her husband, while in the present action they are a son and his wife.

The action was on a bond promising to pay money, and the defense that after the payment of certain amounts, which were paid, that the remainder of the bond was to be accounted for in a settlement of the father's estate as an advancement, and was not to be paid unless needed for the payment of debts. It was held that parol evidence was...