Williams v. Glenn

• Decision Date: 28 February 1885
• Court: North Carolina Supreme Court
• Parties: JOS. WILLIAMS v. TYRE GLENN, Executor.

92 N.C. 253

53 Am.Rep. 416

JOS. WILLIAMS

v.TYRE GLENN, Executor.

Supreme Court of North Carolina.

February Term, 1885.

This was a CIVIL ACTION, tried before MacRae, Judge, and a jury, at Fall Term, 1884, of YADKIN Superior Court.

The plaintiff sought to recover of defendant, as contribution, one-third of a sum alleged to have been paid by plaintiff as joint principal with defendant's testator, in satisfaction of a note given to J. C. Conrad, guardian, and expressed upon its face to have been given by plaintiff as principal, and defendant's testator and Nathaniel Boyden, as sureties. The deposition of N. L. Williams was read in evidence by plaintiff. Defendant objects to the following questions: State what you know about the note given by myself, Nathaniel Boyden and Tyre Glenn, which note was given in Salisbury, at Mr. Boyden's office? And defendant objects to the answer thereto, it being proposed to contradict the note, and to show that defendant's testator was not a surety, but a joint principal.

The presiding judge sustained the objection, and intimated his opinion that parol evidence could not be admitted to show that defendant's testator was not a surety. Whereupon the plaintiff submitted to a nonsuit, and appealed.

Messrs. Clement & Gaither, for the plaintiffs .

Mr. D. M. Furches, for the defendant .

ASHE, J. (after stating the facts).

The plaintiffs Joseph Williams and Nathaniel Boyden, and defendant's testator executed a sealed note to J. C. Conrad, guardian of certain minor heirs, which is in the following form: “We, Joseph Williams, Jr., as principal, and N. Boyden and Tyre Glenn as sureties, promise to pay,” &c. Boyden paid one-third of the amount of the note, and plaintiff the residue, and brought this action against the defendant as executor of Tyre Glenn for contribution. The defendant contended that, upon the face of the note, his testator was only surety for Joseph Williams, and was not liable to him for contribution. The plaintiff alleged in his complaint and offered to prove on the trial, that the said note was given upon a consideration for the common benefit of the three parties who signed it, and that it was agreed at the time of its execution that they were all three to be equally liable as principal, but that upon the suggestion of the attorney who drew the note, that the law required guardians to take notes with good security, it was drawn in the form as if Joseph Williams was principal and the others sureties.

The defendant objected to this evidence upon the ground that it would alter, contradict and vary the written agreement of the parties. His Honor sustained the objection, so that the question presented for our consideration is, when a note is signed by one person as principal and others as sureties, is it competent for him, who appears upon the face of the note as principal, after paying the amount of the note, in an action for contribution against those who appear to be sureties only, to offer parol evidence to show that they were all principals and equally liable.

This is the first time this question has been presented to this court for adjudication. Questions somewhat similar were decided in Welfare v. Thompson, 83 N. C., 276; Cole v. Fox, Ibid, 463, and Goodman v. Litaker, 84 N. C., 8. These cases differ from this, in that there they all appeared to be principals upon the face of the instrument, and parol evidence was admitted to show the fact of suretyship, upon the principle that it would be inequitable for the creditor, after knowledge of the suretyship, to do any act impairing the rights of the surety, and it could make no difference whether the fact was brought to the knowledge of the creditor by the instrument itself or by extrinsic evidence.

In this case, one of the parties appears, upon the face of the instrument, to be principal, and the others sureties, and it is proposed by the plaintiff, the nominal obligor, to show that they are all principals. The defendant resists the proposition of the plaintiff, and to sustain his position his counsel, in his brief, has cited numerous authorities, both text-writers and decisions of this court, to establish the fact that parol evidence is not admissible to contradict, add to, or vary a contract in writing. That doctrine is admitted. But it has no application to a case like this. The principle laid down in those authorities, and relied upon in support of the defendant's position,...