Opinion
June Term, 1824.
A., being indebted to B. in the sum of $1,000, conveys to B. a house and lot to satisfy the debt, and the consideration in the deed is expressed to be $1,000. B. sues A. for the debt: Held, that A. may show the consideration of the conveyance, for it does not contradict any averment in the deed, but is evidence of a distinct fact.
ACTION for goods, wares, and merchandise sold and delivered. A witness proved the sale of the articles, and that there remained due on such sale $1,000. The defendant offered in evidence a deed of bargain and sale, made by him to the plaintiffs, for a house and lot in consideration of the sum of $1,000. The defendant proposed to prove by plaintiff's witness, who was a subscribing witness to the deed, that it was made to and accepted by the plaintiffs in payment of the goods sold; but the court refused to hear the testimony, because it would contradict the written agreement in the deed, which stated the consideration to be money, not goods, wares, and merchandise; and a verdict was rendered for plaintiffs for $1,000, with interest and costs. A (83) new trial having been refused and judgment rendered, defendant appealed.
When, originally, the defendant received the goods from the plaintiffs, he became their debtor to the amount of one thousand dollars, and for and in consideration of that one thousand dollars it was agreed that the house and lot should be conveyed to the plaintiffs by the defendants. There was certainly a thousand dollars in the hands of the defendant, belonging to the plaintiffs, when the deed was executed. The defendant acknowledges that he had received that sum from them. I can see no objection to the inquiry how that thousand dollars came into the defendant's hands; whether the plaintiffs paid it to him, or whether it was the price of the property which they let him have, or how otherwise. It is clear he had it, and owed it to them; and I cannot think it is contradicting the deed to show that it came into his hands as the price of goods sold to him.
Again, the simple contract was that the defendant should convey the house and lot to the plaintiffs for $1,000, which he owed them for goods sold to him. Accordingly the deed has been executed, conveying the house and lot to them, and the consideration therein set forth is $1,000. I think the defendant is at liberty to prove the contract; that it was agreed that the conveyance of the house and lot should be a discharge of the debt due for goods sold, notwithstanding the only consideration set forth in the deed was $1,000. It is no contradiction of the deed, but it is proving a distinct fact.
PER CURIAM. New trial.
Cited: Lane v. Wingate, 25 N.C. 332; Mendenhall v. Parish, 53 N.C. 107; Perry v. Hill, 68 N.C. 420; Ivey v. Cotton Mills, 143 N.C. 184.
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