Opinion
(December Term, 1830.)
Where an agreement in writing is made, and one of the contracting parties and a third person agree by parol that its stipulations shall extend to them, in an action between the two last, the written agreement is competent evidence, and may be connected with that on which the action is brought by parol testimony.
ASSUMPSIT, in many respects similar to that of Cowan v. Davidson, ante, 533. The plaintiff declared for the breach of an express agreement by the defendant either to pay the amount of a judgment obtained by the plaintiff against one McCulloch, or to surrender certain negroes of McCulloch, on which he, the defendant, had a mortgage, and permit the sheriff to sell them, in satisfaction of an execution on that judgment. The defendant pleaded the general issue, and the statute of limitations. To the latter plea the plaintiff replied a former suit for the same breach, a nonsuit therein, and that the present action was commenced within a year and a day after the judgment of nonsuit in the first.
Gaston, for the defendant.
Devereaux, for the plaintiff.
FROM IREDELL.
Upon the issue on the plea, the plaintiff produced the written agreement, a copy of which has been given in Cowan v. Davidson, and offered to prove that when that agreement was signed (536) he was present and consented thereto, and that an execution on his judgment against McCulloch was then in the hands of the sheriff, and was in all respects equally binding upon the property mortgaged to the defendant, as those in favor of Cowan. The counsel for the defendant objected to this testimony, insisting that as the plaintiff's name was not inserted in the body of the agreement, he was no party thereto, and that the testimony, if received, would vary or explain the written contract. The objection was overruled by his Honor, Judge MANGUM, and the agreement was read to the jury.
The plaintiff then proved a disagreement in opinion between Messrs. HENDERSON and MARTIN, and the making up of the case of Davidson v. Beard, 9 N.C. 520, and further, that after the decision of the Supreme Court in that case, but before the commencement of the present action, that final judgment in that suit had been rendered against the plaintiff in the Superior Court of Mecklenburg. The plaintiff also fully supported his replication to the plea of the statute of limitations.
Under the directions of his Honor, the jury returned a verdict for the plaintiff, and the defendant appealed.
The written agreement between Cowan and Davidson is not the agreement declared on by the plaintiff; nor was it given in evidence, as the one entered into between the parties to the present suit. We understand the case, that the plaintiff alleged that he and the defendant made a like agreement, not in writing, referring expressly to the written one. The sole purpose, then, of offering the letter in evidence was to show precisely the terms of the contract between (537) these parties. It was necessary evidence, as their parol agreement referred to the written one, and the latter was, therefore, the highest proof of the terms of the former. To connect them in this manner by parol testimony, there can be no objection. It is not varying, nor even explaining the writing. It is simply proving that the plaintiff and defendant said: "We agree by word of mouth exactly as Mr. Cowan and Mr. Davidson have agreed on paper."
Upon the contract thus ascertained, the Court put a construction at the last term in the suit brought on it by Cowan, which fully determined this.
No objection is taken in this Court to the replication to the plea of the statute of limitations. Indeed, the Court could not hear an argument on it. The judgment must be affirmed.
PER CURIAM. Affirmed.