Spencer v. . Bynum

The eighth and ninth findings of fact are determinative of the controversy between the plaintiff and the defendants, and we have no power to disturb them, if the allegations of the answer are sufficient to justify the admission of evidence upon which they are based, and if the evidence introduced is competent.

An inspection of the answer shows that it alleges the agreement entered into at the time of the dissolution of the partnership in almost the same words that are used by the referee in his finding of fact, and we must therefore hold that the answer is sufficient.

(123) We might dispose of the exceptions to evidence set out in the assignments of error upon the ground that the evidence objected to is immaterial and its admission harmless, because it appears from the record that the defendants offered ample evidence of the agreement that was not objected to, and this evidence embraced in the assignments is only as to two or three circumstances which could not reasonably have affected the result, but in our opinion all of the evidence tending to prove the oral agreement was competent and comes within the principle stated in Nissen v. Mining Co., 104 N.C. 310, and approved inAnderson v. Corporation, 155 N.C. 134, that "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."

The written contract introduced in evidence does not purport to contain the entire agreement, and is devoted exclusively to clothing the defendant Bynum with the power and the authority to take charge of the assets of the partnership and apply them to the payment of debts and to distribute any balance among the partners, leaving in parol the agreement among the partners that they would lose any amount due by the partnership to either one of them, and by proving the parol agreement the written contract is not changed or varied, and may be enforced as it is written.

This disposes of the first, second, third, fourth, and fifth assignments of error, and the sixth assignment is formal, being entered for the purpose of preserving the other exceptions.

It was also urged upon the argument that the agreement embodied in the eighth finding of fact could not be enforced because there was no consideration to support it, and conceding that this question may be presented by the exception to the judgment, we think the position cannot be maintained.

In Institute v. Mebane, 165 N.C. 650, the Court approved a quotation from 9 Cyc., 312, that "There is a consideration if the promisee, in return for the promise, does anything legal which he is not bound to do, or refrains from doing anything which he has the right to do, whether there is any actual loss or detriment to him, or actual benefit to the promisee or not," and upon this principle the mutual promises for a dissolution of the partnership, the agreement of the defendants to forego any claim against the plaintiff on account of his mismanagement of the business of the partnership, and the agreement upon the part of the defendant Bynum to purchase a large part of the property of the partnership for the purpose of enabling the partnership to pay its debts, although he paid no more than its value, furnish a consideration sufficient to support the agreement.

The action has been tried by a careful and accurate lawyer (124) acting as referee, and his findings and rulings have been reviewed and approved by an impartial and learned judge, and upon an inspection of the whole record we find no reason for disturbing the conclusion they have reached.

Affirmed.

Cited: Fisher v. Lumber Co., 183 N.C. 489; Anderson v. Nichols,187 N.C. 810; Exum v. Lynch, 188 N.C. 396; Stonestreet v. Oil Co.,226 N.C. 263.