Western Carolina Bank v. Moore

• Decision Date: 26 May 1905
• Court: North Carolina Supreme Court
• Parties: WESTERN CAROLINA BANK et al. v. MOORE.

138 N.C. 529

51 S.E. 79

WESTERN CAROLINA BANK et al.

v.MOORE.

Supreme Court of North Carolina.

May 26, 1905.

1. Promissory Note—Action on — Defenses —Parol Evidence Varying Written Contract.

In an action by the receiver of a bank on a note defendant alleged that he executed the same to a then director of the bank, who was indebted to it, under an agreement that the director should resign, and defendant take his place; that the director's stock in the bank should be formally assigned to defendant, who should execute his note therefor to the director, new stock to issue to defendant in place of that assigned, to be considered, however, as belonging to the director; that both note and stock were to be held by the bank, but that defendant should not be liable on the note. The note, which the jury found belonged to the bank, was reported as part of its assets. Held, the defense was not open to defendant, parol evidence being inadmissible to show the oral agreement. 2. Same—Judgment Notwithstanding Verdict.

The jury having found on the first issue that plaintiff was the owner of the note, he was entitled to judgment for the amount thereof and interest, notwithstanding the verdict on the second issue that the note was executed under a parol agreement that defendant should not be liable thereon.

Appeal from Superior Court, Buncombe County; Moore, Judge.

Action by the Western Carolina Bank and W. W. Jones, receiver, against C. B. Moore. Judgment for defendant, and plaintiffs appeal. Reversed.

Civil action tried at March term, 1905, superior court of Buncombe county. W. W. Jones, receiver of the Western Carolina Bank, having found the note of defendant to the amount of $600 among the assets of the bank, instituted this action against defendant alleging that the note sued on belonged to the bank, and was due and unpaid. The defendant answered, and denied that the note belonged to the bank, and by way of further defense averred: That on or about the 22d day of February, 1897, he was approached by one Lewis Maddox, at that time president of the Western Carolina Bank, who stated to him that J. E. Reed, who was the father-in-law of the defendant, and a director of said bank, was largely indebted to said bank, and that the bank had been criticised by the public and others interested in the affairs of the bank because of said fact— that is, because said Reed, being such debtor, was also a director of the bank. That he (Maddox) and Reed had agreed together that defendant should formally take an assignment of the stock which said Reed then held in the bank, to wit. $500 of the same, and the defendant should formally execute his note payable to Reed therefor. "That new stock should be formally issued to the defendant in place of the stock of said Reed, and that said note and said stock should be held by said bank, but that the same, the said note, should never be collected or presented for payment, and that said stock, although issued to the defendant, should be considered and remain the property of the said J. E. Reed. That said Reed should resign as such director in said bank, and that this defendant should formally become a director thereof in his place. (2) That thereupon this defendant, believing said transaction innocent in itself, and that thereby he would subserve the interest of said bank and of the said J. E. Reed, his father-in-law, he consented to make said note upon said terms, and did then and there sign the same anddeliver it to said bank through the said Maddox, its president, upon the terms and understanding stated in the first paragraph of this further defense; and the said note was held by said bank, and said receiver took the same, if he took at all, and still holds it, upon said terms above set forth. Wherefore this defendant demands judgment that the said note be delivered up for cancellation, and that he go hence without day, and recover of the plaintiffs his reasonable costs in this action in his behalf incurred." There was evidence that defendant's father-in-law, J. E. Reed, now dead, had been a stockholder and director in the bank, and had borrowed a large sum of money, which he still owed, and the management of the bank was being criticised by reason...