Roebuck Et Ux v. Carson

• Decision Date: 27 February 1929
• Docket Number: (No. 53.)
• Citation: 146 S.E. 708,196 N.C. 672
• Parties: ROEBUCK et ux. v. CARSON et al.
• Court: North Carolina Supreme Court

146 S.E. 708

(196 N.C. 672)

ROEBUCK et ux.

v.CARSON et al.

(No. 53.)

Supreme Court of North Carolina.

Feb. 27, 1929.

Appeal from Superior Court, Martin County; M. V. Barnhill, Judge.

Action by L. D. Roebuck and wife against J. J. Carson and another. Judgment for defendants, and plaintiffs appeal. Affirmed.

On November 15, 1926, the plaintiff L. D. Roebuck borrowed from the defendant Carson the sum of $6,500, executing and delivering to the defendant as evidence thereof five promissory negotiable notes. Four of said notes were executed in the sum of $1,000 each, payable on the 15th day of November, in the years 1927, 1928, 1929, and 1930. The remaining note of $2,500 was payable on the 15th day of November, 1931. Plaintiff and his wife, in order to secure said notes, executed and delivered a deed of trust upon a certain tract of land, in which deed of trust the defendant Gurganus was named as trustee. Default having been made in the payment of the notes, the trustee advertised the land for sale on the 24th day of November, 1928. Thereupon, the plaintiff applied for an injunction to restrain the sale of said property, alleging "that at the time of the execution and delivery of the notes and deed of trust * * * there was a contemporaneous verbal agreement entered into by and between the plaintiff and the defendant according to the terms of which the defendant promised and agreed that if the plaintiff would pay him a bonus of $500.00 that the defendant would carry said loan during the term of his natural life, * * * provided and upon condition that the plaintiff pay to him each year the interest on said loan at six per cent. per annum during said period. And this agreement was entered into by and between the plaintiff and the defendant, notwithstanding the fact that said notes above mentioned, upon their face, would become due and payable as above set out, and said defendant, regardless of what is stated in said notes, made the loan upon this verbal agreement, etc."

The verbal agreement alleged by the plaintiff was denied in the answer.

The cause was heard and the following judgment entered, to wit: "Upon consideration of the pleadings, the court is of the opinion and doth so adjudge that the restraining order heretofore issued be and the same is hereby dissolved."

From said judgment, plaintiff appealed.

A. R. Dunning and B. A. Critcher, both of Williamston, for appellants.

Spruill & Spruill, of Rocky Mount, for appellees.

BROGDEN, J. If promissory, negotiable notes are duly executed and delivered, payable upon certain dates therein specified, can the maker thereof, as against the payee therein, set up a contemporaneous verbal agree-merit to the effect that the notes would not become payable until the death of the maker?

The principle of law governing the controversy is thus stated in Farmers' Co-op. Fertilizer Co. v. Eason, 194 N. C. 244, 139 S. E. 370: "If a contract is not within the statute of frauds the parties may elect to put their agreement in writing, or to contract orally, or to reduce some of the terms to writing and leave the others in parol. If a part be written and a part verbal, that which is written cannot ordinarily be aided or contradicted by parol evidence, but the oral terms, if not at variance with the writing, may be shown in evidence; and in such case they supplement the writing, the whole constituting one entire contract."

The test is whether the oral terms vary or contradict the writing. This idea was expressed by the court in White v. Fisheries Products Co., 183 N. C. 228, 111 S. E. 182, as follows: "It is true that a contract may be partly in writing and partly oral (except when forbidden by the statute of...