Furr v. . Trull

Nov 22, 1933
Reporters:
, ,
Before:
CoNnor
CoNNOr, J.

Tbe issues submitted to tbe jury at tbe trial of this action arise upon tbe pleadings; they Avere sufficient in form to enable tbe parties to present to tbe jury their respective contentions both as to tbe law and as to tbe facts urvolved in tbe controversy between tbe parties out of Avhich tbe action arose; and are sufficient, when considered in connection Avith tbe admissions of tbe parties in tbe pleadings and at tbe trial, to support tbe judgment. It has been held by this Court tbat where tbe issues submitted by tbe trial court to tbe jury arise upon the pleadings, are sufficient in form to enable tbe parties to tbe action to present to tbe jury all phases of tbe controversy be-tAveen them, and Avhen answered by tbe jury are sufficient to support a judgment, there is no ground for exception to tbe issues. Bank v. Bank, 197 N. C., 526, 150 S. E., 34, Bailey v. Hassell, 184 N. C., 450, 115 S. E., 166, Potato Co. v. Jeanette, 174 N. C., 236, 93 S. E., 795, Power Co. v. Power Co., 171 N. C., 248, 88 S. E., 349, McAdoo v. R. R., 105 N. C., 140, 11 S. E., 316. Tbe exceptions to tbe issues submitted by tbe trial court to tbe jury in tbe instant case, over tbe objections of tbe plaintiff, and to tbe refusal of tbe court to submit tbe issue tendered by tbe plaintiff, cannot be sustained.

There was no error in tbe instructions of tbe court to tbe jury with respect to these issues. Assignments of error based on exceptions to these instructions are not sustained. Tbe contentions of tbe parties both as to tbe law and as to tbe facts involved in these issues were fully and fairly submitted by tbe court to tbe jury, and tbe judgment in this action must be affirmed, unless, as contended by tbe plaintiff in this Court, there was error in overruling bis objections to parol evidence *420 offered by the defendants in support of their contention that each of them signed the note sued on as a surety for the defendant, John Trull, and that plaintiff knew, when he received the said note and loaned the money, that the defendants had so signed the note.

In Welfare v. Thompson, 83 N. C., 276, it is said by Ashe, J., that the authorities are very uncertain and conflicting upon the question whether or not it may be shown by parol that a joint promisor or obligor was in fact a surety. “Some of the authorities hold that in law it cannot be done, but is a defense available in equity, and the proof is admissible whenever equitable pleas are allowed in courts of - law, and especially in our system, where the distinctions between actions at law and suits in equity are abolished.” It is held in that case that parol evidence is admissible to show that a party to a note, although on its face a comaker or coobligor, is in fact a surety, and that when such fact is known to the payee or holder at the time he accepts the note, the party is liable only as a surety. This principle is now well settled as the law of this State. Barnes v. Crawford, 201 N. C., 434, 160 S. E., 464, and cases cited in the opinion in that case. There was no error in the admission of parol evidence at the trial of this action tending to sustain the contentions of the defendants. On the facts admitted in the pleadings, the action is barred as against the answering defendants, although they signed the note under seal. C. S., 437, C. S., 441(1). Barnes v. Crawford, supra. These defendants were liable to the plaintiff as sureties, and not as guarantors. The words in the note 'by which the parties guarantee its payment do not affect their liability, as principal and sureties, respectively. Rouse v. Woolen, 140 N. C., 557, 53 S. E., 430. The judgment is affirmed.

No error.