Clifford v. River Bend Plantation, Inc.

• Decision Date: 04 December 1984
• Docket Number: No. 199A84,199A84
• Citation: 323 S.E.2d 23,312 N.C. 460
• Parties: Frank J. CLIFFORD and Dolorese R. Clifford v. RIVER BEND PLANTATION, INC.
• Court: North Carolina Supreme Court

Page 23

323 S.E.2d 23

312 N.C. 460

Frank J. CLIFFORD and Dolorese R. Clifford v. RIVER BEND PLANTATION, INC.

No. 199A84.

Supreme Court of North Carolina.

Dec. 4, 1984.

David P. Voerman, New Bern, for plaintiffs.

Allen, Hooten & Hodges, P.A. by John M. Martin, Kinston, for defendant.

COPELAND, Justice.

We note at the outset that plaintiffs have based their appeal, in this Court and the Court of Appeals, primarily on the theory that Mr. Efird made a parol warranty of no flooding after the written contract had been signed so that the parol evidence rule does not apply to this case. Judge Eagles based his dissent entirely on the theory that the conversation Mr. Efird had with Mr. Clifford after the first incidence of flooding amounted to a subsequent parol modification of the written contract. Plaintiffs did not object to nor assign as error the trial judge's failure to submit the issue of subsequent parol modification to the jury and thus are precluded from arguing that issue on appeal. "Under Rule 10 of the North Carolina Rules of Appellate Procedure, review is foreclosed except insofar as exceptions are made the bases of assignments of error and those assignments are brought forward." State v. Jones, 300 N.C. 363, 365, 266 S.E.2d 586, 587 (1980). When an appeal is taken pursuant to N.C.Gen.Stat. § 7A-30(2), the only issues properly before the Court are those on which the dissenting judge in the Court of Appeals based his dissent. Grad v. Kaasa, 312 N.C. 310, 321 S.E.2d 888 (1984). Since Judge Eagles based his dissent on subsequent parol modification of the contract, that is the only issue on which plaintiffs can appeal. Because plaintiffs did not properly raise that issue at trial or preserve it for appeal, they may not argue it in this Court. However, in the interest of justice we will consider this issue and the other issues raised by plaintiffs' brief and argument.

The written contract before the Court in this case makes no mention of any warranty against flooding and contains a merger clause declaring that the entire agreement of the parties is contained in the writing.

"(W)here the parties have deliberately put their engagements in writing in such terms as imports a legal obligation free of uncertainty, it is presumed the writing was intended by the parties to represent all their engagements as to the elements dealt with in the writing. Accordingly, all prior and contemporaneous negotiations in respect to those elements are deemed merged in the written agreement. (I)n the absence of fraud or mistake or allegation thereof, parol testimony of prior or contemporaneous negotiations or conversations inconsistent with the writing, or which tend to substitute a new and different contract from the one evidenced by the writing, is incompetent."

Neal v. Marrone, 239 N.C. 73, 77, 79 S.E.2d 239, 242 (1953). In the absence of fraud in the inducement which renders the contract void, warranties cannot be asserted by parol. American Laundry Machinery Co. v. Skinner, 225 N.C. 285, 288, 34 S.E.2d 190, 192 (1945). In this case the jury concluded that the statements made by defendant's agents did not amount to fraud. The merger clause in the written contract clearly excludes from the agreement everything not included in the writing, and parol evidence of express warranties made prior to the execution of the contract are incompetent and inadmissible. Griffin v. Wheeler-Leonard and Co., 290 N.C. 185, 202, 225 S.E.2d 557, 568 (1976). Therefore, the statements made by Mr. Nelson on 18 March 1976 and any statements made by Mr. Efird before the signing of the contract on 19 March 1976 are inadmissible and cannot be used to prove the existence of a warranty.

Plaintiffs' primary argument is that Mr. Efird's conversation with Mr. Clifford in early June and his letter confirming the conversation amounted to a subsequent parol modification of the contract. Plaintiffs argue that Mr. Efird's statement that the house was warranted and that he would take care of the whole matter constituted an express warranty. We disagree.

The fact that a seller attempts to remedy defects in a house that he has sold does not prove that such efforts were made pursuant to a warranty. The only thing said by Mr. Efird, subsequent to the signing of the contract, that could be construed as a warranty is his statement that the house was warranted. Aside from the fact that Mr. Efird testified at trial that he was under the false impression that the house was warranted when he made that statement, the statement is too vague to create a warranty because it does not indicate what is included in the warranty. In his letter of 17 June 1976 confirming his conversation with plaintiffs, the only warranty Mr. Efird referred to was the standard one year warranty for workmanship, materials, and subcontractors. Nothing was said about a warranty against flooding. Other than Mr. Efird's statement that the house was warranted, there...