The opinion
PARKER, J.,
dissenting. In case No. 451, plaintiff prayis judgment of the court against the defendant in the sum of $32,100, with interest thereon at the rate of 6%, ,and for costs. In case No. 452, plaintiff prays judgment of the court against -the defendant in the sum of $3,-062.50, with interest thereon at the rate of 6%, and for -costs. In each case -the -complaint alleges: “A copy of said note is attached hereto marked ‘Exhibit A’ -and -a-sked to be made a part of -this complaint 'as fully ais if set out herein.”
It is well-settled 1-aw that an exhibit attached to a complaint and made -a part thereof -can be c-onsi-dered in passing upon a demurrer. Yeager v. Dobbins, 252 N.C. 824 , 114 S.E. 2d 820 ; Moore v. W.O.O.W., Inc., 253 N.C. 1 , 116 S.E. 2d 186 ; Talman v. Dixon, 253 N.C. 193 , 116 S.E. 2d 338 ; Sale v. Johnson, Commissioner of Revenue, 258 N.C. 749 , 129 S.E. 2d 465 ; 71 C.J.S., Pleading, sec. 257; 41 Am. Jur., Pleading, sec. 246; 39 N. C. L. R. 330, Incorporation by Reference. Carroll v. Brown, 228 N.C. 636 , 46 S.E. 2d 715 , -cited in the majority -opinion as controlling, is -clearly distinguishable. The opinion in that case states: “The .allegation of the plaintiff -to the effect that the note upon which he bottoms his action, dnaw-s interest from date until p-ai-d -at the rate of six per cent per annum, is denied by the defendants in their answer. *522 Tibe note is ¡mot set out in the complaint, hence ,we think the pleadings raise a question of fact if or the jury.” Eacih ¡note, which is attached to each 'complaint iaed made a part thereof as fully as if set out therein, contains this language: “It being understood and agreed that after such sale the -undersigned shall not be liable for any deficiency.”
It appears by the mote in each .case attached to each -complaint and made a .part -thereof as fully ais if set out therein, which mote is the foundation of each case, that the parties agreed that payments should be enforced only by .a sale of the -collateral, and consequently such an agreement precludes personal liability in each case on the part of the maker in these 'actions between the parties. In my opinion, the judgment in each case ibelow sustaining the demurrer to- each complaint should be affirmed, -and I so vote.