Opinion
December Term, 1858.
A receipt, not under seal, given by the obligee of a bond contemporaneously, with its execution, setting forth that such bond was given for a third person's account, and if the latter was not collected, the bond was to be returned, was Held not to be evidence that the bond was delivered as an escrow, and did not amount to a defeasance.
ACTION of DEBT, tried before MANLY, Judge, at the last Fall Term of Cabarrus Superior Court.
R. Barringer, for the plaintiffs.
Jones and Wilson, for the defendant.
The action is debt on a single bill, under seal, for $180,00, dated January 17th, 1853, and payable one day after date, which was given by the defendant to the feme plaintiff, when sole: Pleas, that the bond was delivered as an escrow; and that it was delivered an a condition, which had not been performed. In support of the issue, the defendant offered in evidence a written instrument, given to him by the feme, of which the following is a copy: "Received of J. M. Long a note for one hundred and eighty dollars, for D. F. Long's account; and if J. M. Long does not succeed in getting the amount of said note from D. F. Long, the note is to be returned to J. M. Long. January 17th, 1853. "Signed," "Mary M. Henderson." This evidence was objected to on the part of the plaintiff, but it was received by the Court; and the jury was thereupon instructed, that as the plaintiffs had given no evidence, that the defendant had collected any funds from D. F. Long, the defendant was entitled to a verdict, which was rendered, and from the judgment the plaintiffs appealed.
The bond was delivered to the party herself, and, therefore, could not be an escrow. Nor was the instrument executed by her a defeasance, as it was not under seal. It was, therefore, only a collateral agreement in writing, but still in parol; and consequently, it could not control the absolute terms of the bond, so as to introduce a condition, as a part of it; Walters v. Walters, 11 Ire. 145. Indeed, this instrument does not purport to speak as a condition, on which the bond was to be void; but is a collateral promise, merely, from the obligee in a certain event, to return or deliver up the bond, or note, as it is called. It was, therefore, improperly received in evidence, and also improperly construed.
PER CURIAM, Judgment reversed, and a venire de novo.