241 N.C. 393 | N.C. | 1955
While the defendants allege an agreement on the part of the plaintiffs that the payment of the indebtedness should be out of crops to be grown, yet the evidence and stipulation entered into do not support the allegation. All Mr. Christiansen said is that Mr. Hall agreed in the event the machinery was not delivered in time, or if weather conditions were bad, or both, the plaintiffs would not press for collection but would give an extension of time. The time during which the plaintiffs were to forego their right to collect the notes is not mentioned. A letter in the record shows that Mr. Christiansen asked that he be given until 1 April, 1951, so that he could make a sale of his property and pay his indebtedness to the plaintiffs. There is no claim of an agreement as to how long the plaintiffs would forbear. Actually, suit was not brought until the time requested by the plaintiffs had expired and more than two months after the last note was due.
The defendants allege, further, that Holcomb refused to advance the $8,500.00 to construct the drainage canal because plaintiffs’ deed of trust was placed of record. However, the deed of trust itself contains the stipulation that if Holcomb furnished the $8,500.00 for the drainage canal, he should have a prior lien. There is no allegation or evidence that plaintiffs had any control over Holcomb or had anything to do with his; failure to advance the money for the canal.
The defendant J. W. Christiansen offered to testify with respect to> crop and weather conditions for the year 1950, his opportunity to obtain seed for a wheat crop, the suitability of the land for cultivating wheat,, and the effect of failure to procure the construction of the drainage canal,, all of which evidence was excluded on the plaintiffs’ objection. The defendants also excepted to the peremptory instruction that if the jury believed the evidence they would find for the plaintiffs.
Judge Martin evidently took the view that the written orders for the machinery, the notes, mortgage and deed of trust setting out the time and method of payment, constituted a contract in writing between the parties.. And in the absence of evidence that the notes, mortgage and deed of trust were conditionally delivered, or that there was mutual mistake in drafting them, or fraud in procuring their execution, or a different mode of payment and discharge agreed upon, that parol testimony was inadmissible-to vary or change the contract. The evidence was properly excluded on. the authority of the following cases: Ins. Co. v. Morehead, 209 N.C. 174,
The defendants accepted, retained and used the machinery without paying anything on the purchase price and without offering to return any part of it to the plaintiffs. Letters in the record show the defendants requested extension of time to make the payments and did not question the amount due until after suit was instituted and after all notes had been due for more than two months. The stipulation in the record admits the execution of the notes and the amount of the balance due in exact accordance with the amount found by the jury under the peremptory instruction of the court.
The record fails to show either basis for the defendants’ counterclaim, or a defense to the action on the notes.
No error.
