Kernodle v. . Williams , 153 N.C. 475 ( 1910 )

MANNING, J., dissenting; BROWN, J., concurring in the dissenting opinion. (476) This is an action brought by a father against his daughter and son-in-law to recover upon a certain bond for $915, dated 4 January, 1902, and due one day after date. The defendants in their answer admitted the execution of the bond, and set up the further agreement made at the time, that the defendants would pay certain amounts upon the bond, which have since been paid, and that the balance thereof was to be accounted for in settlement with their father's estate, as an advancement, and that no part thereof was to be paid to his executor unless needed to pay debts of the estate. There were 88 exceptions to the admission of evidence and to the charge, but they all present only one question, and that is whether it was competent to prove the cotemporaneous agreement set up in the answer. While it is true that a cotemporaneous parol agreement is not competent to vary, alter, or contradict a written agreement, still when a contract is not required to be in writing, it may be partly written, and partly oral, and in such cases when the written contract is put in evidence, it is admissible to prove the oral part thereof. Nissen v. Mining Co., 104 N.C. 310. This is not varying, altering, or contradicting the written instrument, but merely showing forth the entire contract that was made. If the entire contract, as set up by the defendants, which the jury find to be true, had been made entirely in writing, or entirely oral, there would have been no difficulty in holding it valid. For instance, a mortgage on its face is a conveyance of land, with a further clause providing for a condition upon which it is a nullity, or under which the land may be sold. The latter part is not held to contradict the former, though in no event is the instrument really a conveyance. So also, with a penal bond, which is generally in a large sum, with a condition annexed by which it is of no effect unless a certain event happens and even then, the obligor is usually called on to pay a much smaller sum. There are many other instances which might be given of a like nature.

In the present case, the contract, as alleged by the defendants and found to be true by the jury, in its entirety, was that the plaintiff gave his daughter $500 absolutely, and took her note for the other $915, upon which certain payments were to be made (which are admitted to have been made) and the balance was given conditionally that it was to be accounted for with the father's executor, i. e., to be (477) required only if needed for the payment of the debts of the estate. Such an agreement is not a contradiction of the terms of the bond, for the full amount would be paid, if necessary, upon the happening of the conditions stipulated for. Agreements of this nature have often been held valid.

In Garner v. Taylor, Tenn. Ch., 58 S.W. 758, it is said: "It may be shown by parol that a note given by a child to a parent was intended by the parties to it as a memorandum or receipt, to show that the parent had advanced that amount to the child, and that it was the intention of the parent that it should never be collected. In some of the States — Maine, Massachusetts and Vermont, for instance — their statutes prescribe what evidence is prescribed to establish the fact of an advancement. In other States where there are no statutes like those in the States mentioned, it has been held that the declarations of the parent before, after, or at any time, of the transaction are admissible in evidence to show the intention to make advancements." That case cites many others. Among numerous other cases to the same effect are Fankboner v.Fankboner, 20 Ind. 62; Peabody v. Peabody, 59 Ind. 556; Harris v. Harris,69 Ind. 181; Baum v. Palmer, 165 Ind. 513; Boblett v. Barlow, Ky., 145;Marsh v. Chrown, 104 Iowa 556; Dawson v. Macknet, 42 N.J. Eq., 633.

In Penniman v. Alexander, 111 N.C. 427, it is said that it is competent for the maker of a promissory note "if sued on the note by the payees, to prove that there was a collateral agreement between him and them to the effect that he should not be required to pay except upon the happening of certain events, or that the note was without consideration." In Evans v. Freeman, 142 N.C. 61, it is said that if an agreement is partly in writing and partly oral, evidence is competent "for the purpose of establishing the unwritten part of the contract, or even of showing the collateral agreement made cotemporaneously with the execution of the writing." The Court adds that this has been repeatedly held by this Court, and "it has been adjudged competent to show by oral evidence a collateral agreement as to how an instrument for the payment of money should, in fact, be paid, though the instrument (478) is necessarily in writing, and the promise it contains is to pay so many dollars." To same purport, Typewriter Co. v. Hardware Co.,143 N.C. 97.

In Benton v. Martin, 52 N.Y. 570, it was held that the annexing of conditions to the delivery of a note is not an oral contradiction of the written obligation (though this were negotiable) as between the parties to it or others having notice thereof. This rule was reiterated in Higgins v.Ridgeway, 153 N.Y. 130. Both these cases were cited, with a restatement of the same proposition, and approved, in Andrews v. Hess, 20 Hun (1897), 199. In Fennell v. Henry, 70 Ala., 484; 45 Am. St., 91, it was held that when a father delivered certain slaves to his daughter and took from her a note bearing interest, for their estimated value, it was competent to receive parol evidence to show that the slaves were intended as an advancement. Indeed, the cases in support of the above proposition are numerous.

This principle is of most frequent application, in cases like the present. In Brook v. Lattimer, 44 Kan. 431; 21 Am. St., 292, it was held an absolute promise in the form of a note to pay a certain sum of money, given by a child to a parent, may be shown by parol evidence to be intended between the parties to it as a mere receipt or memorandum to show that the parent has made an advancement of that amount to his child, and that it was the intention of the parent that it should never be collected. The subject is thus summed up by Browne on Parol Ev., 252, who, quoting the last named case and many others, says, that parol evidence is competent between the original parties to show that the consideration was illegal, or to show the real consideration and purpose, or to show that it was fraudulent, or to show an additional collateral consideration, giving many instances — among them the most common being to show that a note given by a child to a parent, though absolute in terms was by parol agreement to be deemed an advancement.

No error.