10 S.E. 295 | N.C. | 1889
The complaint is upon an executory contract (a copy of which is annexed to the complaint) for the purchase of land, wherein Mary M. *234 Alexander, the testatrix of the defendant Mary V. McElwee, contracted to pay a specified sum for said land and executed notes therefor. (306) The plaintiff asks judgment for balance due on said notes, and a sale of the land, if payment is not made by a day to be fixed by the court. The answer admits the written contract set up, but avers that defendants are informed and believe that the notes referred to in the contract and sued on, were not given for the purchase money of the land only, but by an agreement, made at time of signing, said contract embraced a certain judgment in the United States Court held by plaintiff against one Carlton and the defendant J. H. McElwee, which plaintiff agreed to assign to defendant's testator; that the plaintiff afterwards receipted and canceled said judgment, and defendants ask to have the amount of such judgment credited upon the notes sued on. There is no allegation in the answer that this contemporaneous agreement was omitted from the written contract by fraud, accident, or mutual mistake.
There are other allegations in the complaint and answer, but they have no bearing upon the question raised by the appeal.
After both parties announced their readiness for trial, and after the pleadings in the cause had been read, the defendants moved the court to be permitted to amend their answer, by inserting therein an allegation "that the judgment was omitted from the contract sued on by mistake and inadvertence."
The court declined to allow such amendment.
The defendants then tendered the following issues:
1. At the time of the execution of the contract appended to plaintiff's complaint, was it agreed between Mary M. Alexander and the plaintiff that the judgment on McElwee Carlton was to be assigned to her?
2. Was any reference to said judgment left out of the contract by the inadvertence or mistake of the parties?
3. What was the amount of said judgment of which satisfaction (307) was so entered?
4. What amount did the plaintiff receive, or should have received, from the notes of D. H. Bell, deposited as collateral security?
The court submitted issue No. 4 tendered by the defendant, and declined to submit issues numbered 1, 2 and 3, because the answer failed to allege that the said judgment was omitted from the contract sued on through mistake, inadvertence, or fraud of the parties.
The defendants excepted.
There was a verdict and judgment thereon for plaintiff, from which defendants appealed.
The refusal of the motion to amend rested in the sound discretion of the court, and is not reviewable. Henry v. Cannon,
In cases where the law does not require the contract to be in (308) writing, if only a part of the contract is reduced to writing it is competent to prove the unwritten part by parol. But that principle has no application here. The contract contains an agreement by defendants' testator to pay the sum named "for the property," and recites and describes the notes as executed for such purchase money. Proof that they were given in part only for the purchase money of the land, would "contradict, add to, or modify," the written agreement of the parties. In the absence of an allegation in the answer, that the consideration of the note was incorrectly recited, or a part of it omitted, by fraud, accident, or mutual mistake, such proof was inadmissible. Etheridge v. Palin,
It was no error, therefore, to refuse to submit issues upon an equitable defense not properly set up in the answer. Parker v. Morrill,
Affirmed.
Cited: Pollock v. Warwick, post, 641; Posey v. Patton,