Ledford v. Emerson
| Decision Date | 25 May 1905 |
| Citation | 51 S.E. 42,138 N.C. 502 |
| Parties | LEDFORD v. EMERSON. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court of Cherokee County; Shaw, Judge.
Action by John Ledford against A. S. Emerson. From a judgment of nonsuit, plaintiff appeals. Reversed.
In an action to recover plaintiff's share of the proceeds of the sale of options procured by plaintiff and placed in defendant's hands for sale, the options are collateral to the issue, and their contents may be proved by parol.
Busbee & Busbee, Axley & Axley, and E. B. Norvell, for appellant.
Dillard & Bell, for appellee.
The plaintiff alleges that he procured options on about 60,000 acres of land, and placed the same in the hands of the defendant for sale; that the defendant sold the options for $10,000 cash, and paid the plaintiff $600, and, by false and fraudulent statements to the plaintiff, obtained from the plaintiff a receipt in full. The plaintiff sues to recover $4,400, the remainder of his half of the $10,000. Neither the options nor their contents are in litigation.
On the trial the plaintiff proposed to show by his own evidence that he had performed his part of the contract between himself and defendant; that he took options for about 65,000 acres of land, and delivered the same to the defendant; and that the defendant sold them for $10,000. On objection of defendant the court refused to allow the plaintiff to show this holding that the plaintiff could not speak of the options without producing them, and refusing to allow the evidence offered by the plaintiff.
His honor misconceived the kind of action that was being tried for, from his ruling, he must have thought that the options or their contents were in litigation--were the gravamen of the action--when they were not. The purpose of the action is to recover the plaintiff's share of the proceeds of the sale of the options, which the plaintiff alleges the defendant has fraudulently withheld from him. It was competent, therefore, to permit parol evidence of the options and their contents. They were collateral to the issue. Our reports contain numerous precedents. Carden v McConnell, 116 N.C. 875, 21 S.E. 923; Pollock v. Wilcox, 68 N.C. 50; Reynolds v. Magness, 24 N.C. 26; 1 Greenleaf, Ev. 275-279.
The rule that parol evidence cannot be allowed as to the contents of a written instrument applies only in actions between parties to the writing, and when its enforcement...
To continue reading
Request your trial