Woods v. Finley

• Decision Date: 30 November 1910
• Citation: 69 S.E. 502,153 N.C. 497
• Parties: WOODS v. FINLEY et al.
• Court: North Carolina Supreme Court

69 S.E. 502

153 N.C. 497

WOODS v. FINLEY et al.

Supreme Court of North Carolina

November 30, 1910

Appeal from Superior Court, Wilkes County; E. B. Jones, Judge.

Action by W. S. Woods against John T. Finley and others. From a judgment for plaintiff, defendant named and other defendants took separate appeals. Reversed, and new trial granted on each appeal.

Where the note sued on was joint and several on its face, evidence of a contemporaneous oral agreement by which each of the signers should be liable only for his pro rata part of the note was properly excluded.

W. W Barber, Manly & Hendren, and Finley & Hendren, for appellants.

Oscar C. Dancey, for appellee.

CLARK C.J.

McLaughlin Bros. of Cleveland, Ohio, through their agent sold to certain parties in Wilkesboro, N. C., a stallion at the price of $3,000. The purchasers executed to the vendors three notes for $1,000, each, payable July 1, 1907. These notes were signed by 12 parties and were expressed as being joint and several. At the same time the notes were executed, the vendors executed in writing a guaranty as to the quality of the horse, and that if he was not satisfactory, upon his return in good condition, they would replace him with another at the same price. The vendees becoming dissatisfied with the horse, J. T. Finley and five others returned the horse and received another. The other six (Brame and five others) declined to have any part in accepting the other horse contending that by reason of the horse not coming up to the guaranty they were released from their liability by reason of fraudulent representations which they set forth in their answer. This action is upon one of the notes for $1,000. The plaintiff alleges in his complaint that he was a holder in due course, and took the note by assignment of the payees for value and without notice before maturity. This is denied in the answer. There was evidence, if believed, that the plaintiff became the holder of the note for value and before maturity and without notice of any equities, but there was no evidence that the note was indorsed.

Finley's Appeal.

J. T Finley and four others alleged in their answer that they had paid their full pro rata part of said note, and that judgment should be taken against the other defendants alone, if any should be rendered. The plaintiff admitted the receipt by him from Finley and others of the amount claimed, but contended that such payments had been credited upon the note, and that he was entitled to judgment against all the defendants, jointly and severally, for the balance due on said note.

The note upon its face was joint and several and his honor therefore properly excluded evidence offered to show an alleged contemporaneous oral agreement that each of the signers should be liable only for his pro rata part of the notes. This would have been to contradict the written contract. But it was error to refuse in evidence the checks given by Finley and his associates in this appeal, in making payments upon said notes. Each of these checks expressed on its face that it was to pay the drawer's "share of McLaughlin Bros.' notes." These checks were accepted by the plaintiff and indorsed by him, and were paid by the drawee. They are competent evidence that the plaintiff agreed to receive from said parties such payments in discharge of their liability upon the note. Petit v. Woodlief, 115 N.C. 120, 20 S.E. 208; Kerr v. Sanders, 122 N.C. 635, 29 S.E. 943; Cline v. Rudisill, 126 N.C. 525, 36 S.E. 36; Wittkowsky v. Baruch, 127 N.C. 315, 37 S.E. 449; Ore Co. v. Powers, 130 N.C. 152, 41 S.E. 6; Armstrong v. Lonon, 149 N.C. 434, 63 S.E. 101; Drewry v. Davis, 151 N.C. 297, 66 S.E. 139.

It is true that if some of the other signers of the notes should be insolvent and those not so should be compelled to pay...