
    A. B. HUNTER & CO. v. J. L. SHERRON.
    (Filed 16 October, 1918.)
    1. Courts — Discretion—Recalling Witnesses — Appeal and Error.
    Permitting a witness to be recalled and testify, tbougb contradictory of his first evidence, is in the discretion of the trial judge, and not reviewable on appeal.
    
      2. Contracts, Written — Vendor and Purchaser — Fraud — Opinions—Mistake of Law.
    Where a seller of goods has induced a transaction by a false representation, upon which the purchaser has relied, and which formed a material inducement, without which the trade would not have been made, etc., the question as to whether such representation was a mistake of fact or of law, and therefore not a false representation, will not affect the purchaser’s right to annul the contract as having been obtained by fraud.
    3. Contracts, Written — Fraud—Parol Evidence.
    Where a written instrument sued on is sought to be invalidated for fraud, illegality, or failure of consideration, parol evidence thereof is admissible, and not objectionable on the ground that it varies or contradicts the writing.
    4. Same — Vendor and Purchaser — False Representations — Bills and Notes— Consideration.
    A seller of fertilizer represented to a purchaser, an illiterate man, that if he would sign a note with another purchaser, it would permit both shipments to be made in the same car and obviate the necessity of his taking two notes, and that it would be the same to him if he “signed one note as if it were two”: Held, the statement was of the fact that the purchaser would only have to pay for his own fertilizer; and, as to the other fertilizer, there was a failure of consideration, and evidence thereof was competent.
    Appeal by plaintiffs from Stacy, J., at March. Term, 1918, of "Wake.
    
      A. J. Fletcher and It. N. Simms for plaintiffs.
    
    
      Robert W. Winston for defendant.
    
   Claek, C. J.

To tbe issue, “Was tbe note sued upon in tbis action procured by fraud on tbe part of tbe plaintiff, as alleged in tbe answer ?” tbe jury responded “Yes.” Tbe plaintiffs excepted because, after tbe defendant bad testified be was allowed to go on tbe stand again tbe next day and offer testimony wbicb tbe plaintiffs claim was contradictory. Tbe permission for tbe witness to be recalled was in tbe discretion of tbe court, and not reviewable.

Tbe plaintiffs- rest tbeir appeal almost entirely upon tbe refusal to charge, as requested, “That even if tbe jury should find as a fact that tbe plaintiffs misrepresented to tbe defendant tbe legal effect of signing tbe note, tbis would not defeat tbe plaintiffs’ right to recovery, since tbe plaintiffs’ statement was a mere matter of opinion and could not be a false representation.”

In tbe notes to Wollam v. Hearn, 2 White & Tudor Ldg. Cas., Part I, p. 988, it is said: “Whatever doubt may exist in other cases, it is clear that one who induces tbe execution of an instrument by a false or mistaken statement of its legal effect or operation should not be allowed to take advantage of an error wbicb be has contributed to produce.” Champlin v. Laytin, 18 Wend., 407.

Tbis is an action upon a note for tbe balance alleged to be due upon tbe purchase money of fertilizers, and tbe allegation, in tbe answer is that one of tbe plaintiffs, A. B. Hunter, approached tbe defendant to induce him to buy said fertilizers, and after tbe defendant bad agreed with Hunter for tbe purchase of fertilizers for himself, “Tbe said Hunter wrongfully and, with tbe intent to cheat and defraud, falsely and fraudulently pretended and represented to tbis defendant that if be would agree to have bis fertilizers shipped in tbe ear with the* fertilizers of tbe defendant J. S. Brinkley, that it would save bis making two shipments and be more convenient to plaintiffs, and it would save bis preparing two notes, and tbis defendant was requested to sign a note for bis part of tbe fertilizers, together with defendant Brinkley, under tbe belief, fraudulently and falsely induced by tbe said A. B. Hunter, that tbe purpose and effect of tbis defendant’s executing a note together with said Brinkley would have tbe same legal effect; and tbis defendant, relying explicitly upon said Hunter’s representations, which were falsely and fraudulently made, and believing that be would only be liable for and called upon to pay that part of tbe said note wbicb was represented by tbe fertilizers bought by him, as aforesaid, consented to sign a note; that as tbis defendant is informed and believes, tbe representations made to him and bis co-defendant were falsely and fraudulently made, and with tbe purpose and intent to cheat and defraud tbis defendant out of bis property, and to make him become and be liable for the other debt of tbe said Brinkley, all of wbicb was without tbe defendant’s knowledge or consent.”

On an allegation tbat a contract is obtained by fraud, parol evidence is always admissible. Bigelow on Fraud, 174, sec. 8.

It is competent to show-by parol testimony tbat one who has become joint obligor is in fact only a surety. Welfare v. Thompson, 83 N. C., 276. Testimony by tbe defendant tending to show an additional feature, bow tbe note should be paid, is admissible. Bank v. Redwine, 171 N. C., 565; Typewriter Co. v. Hardware Co., 143 N. C., 100; Evans v. Freeman, 142 N. C., 61; Carrington v. Waff, 112 N. C., 115.

Allegations of fraud, illegality, or want of consideration are exceptions to tbe general rule tbat evidence of an alleged oral agreement, contemporaneous with tbe execution of a note, are not competent to contradict or vary tbe terms of tbe written contract.. Carrington v. Waff, supra. In this case, as Sherron purchased bis own fertilizer on bis own credit, there was a total failure of consideration as to Brinkley’s fertilizer, for Sherron got no part of Brinkley’s fertilizer and no benefit therefrom. Taylor v. Smith, 116 N. C., 531; Braswell v. Pope, 82 N. C. 57; Kerchner v. McRae, 80 N. C., 219.

Tbe evidence of fraud in this case tended to show tbat it was perpetrated, not by an agent, but by tbe principal, and not as to a question of law, but as to a fact. Tbe representation, “It will be tbe same with you if you sign one note as if there were two,” is equivalent to saying tbat tbe plaintiffs would not bold Sherron liable on tbe note, except for bis own fertilizer. Tbat tbe defendant relied upon it was not ignorance of law, but reliance upon a statement of fact by tbe plaintiff. Tbe jury, having found this to be tbe fact, properly found tbat there was fraud in procuring-tbe execution of tbe note for tbe full amount, including Brinkley’s part of tbe fertilizer. Novelty Co. v. Moore, 171 N. C., 704.

It was in evidence tbat defendant Sherron could not read bandwriting, and tbat when be signed one note to save tbe plaintiff tbe trouble of signing two notes, tbat Sherron did this in reliance upon Hunter’s statement. It was also in evidence tbat tbe plaintiff, Hunter, admitted tbat Brinkley bought bis own fertilizer, and tbat be bad presented a separate bill to each for their respective part of tbe fertilizer.

This is not tbe case of a party who can read having a deed put before him for execution, or, if unable to read, not demanding to have it read over and explained to him. In such case- there is negligence, and tbe party, in tbe absence of fraud, cannot be beard to deny bis own act and deed; but here tbe testimony is, tbat Hunter represented to tbe defendant, who was illiterate, tbat be could sign tbe two notes merely as a convenience, and tbat be would not be responsible, except for bis own part of tbe fertilizer, and tbat tbe defendant, relying upon such statement, signed tbe note. Tbis was not ignorance of law, but a misrepresentation on tbe part of Hunter, as tbe jury find, intended and calculated to deceive tbe defendant. Besides, as to bim, tbe note as to Brinkley’s part of tbe fertilizer was without consideration.

No error.  