Deaton v. Coble , 245 N.C. 190 ( 1956 )

95 S.E.2d 569 (1956) 245 N.C. 190

Ed DEATON
v.
Lewis D. COBLE.

No. 531.

Supreme Court of North Carolina.

December 12, 1956.

C. M. Llewellyn, M. B. Sherrin, Jr., Concord, for plaintiff appellant.

John Hugh Williams, Concord, for defendant appellee.

WINBORNE, Chief Justice.

The statute of frauds, G.S. § 22-1, in pertinent part provides that "no action shall be brought * * * to charge any defendant upon a special promise to answer the debt, default or miscarriage of another person, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party charged therewith * * *."

Testing the paper writing sued on by the provision of this statute, it is seen that it lacks the essential of a "special promise to answer the debt * * * of another person" the plaintiff. The second sentence is incomplete, and uncertain in meaning. Thus there is no written special promise. Hence an action may not be maintained on it.

Moreover, exceptions to the testimony of the witness Mabry brought forward as basis for assignments of error are without merit.

It is erroneously contended that the paper writing is unambiguous, and hence the meaning of it is a matter of law to be determined by the court, and it cannot be varied, modified or added to by parol evidence. But the parol evidence rule is inapplicable. This rule presupposes the existence of a legally effective written instrument. It does not in any way preclude a showing of facts which would render the writing inoperative or unenforceable. Stansbury North Carolina Evidence, Sec. 257, p. 519.

Furthermore, when the portions of the charge to which exceptions are taken are considered in context, it is seen that they are without merit. Likewise the ground upon which exception is taken to the failure of the court to properly charge the jury as required by G.S. § 1-180 is without merit. Appellee suggests, in brief filed here, that in these exceptions appellant is actually complaining because of the subject matter and submission of the second issue which left to the jury the determination as to whether defendant promised to repay plaintiff. Be that as it may, the record fails to show that the issues submitted were objectionable to the parties.

Some of the assignments of error appear to have been abandoned. But, in any event, due consideration has been given to all assignments of error, and in the judgment from which plaintiff appeals there appears to be

No error.

JOHNSON, J., not sitting.