Palmer v. Lowder

• Decision Date: 18 November 1914
• Docket Number: 401.
• Citation: 83 S.E. 464,167 N.C. 331
• Parties: PALMER v. LOWDER ET UX.
• Court: North Carolina Supreme Court

83 S.E. 464

167 N.C. 331

PALMER v. LOWDER ET UX.

No. 401.

Supreme Court of North Carolina

November 18, 1914

Appeal from Superior Court, Stanly County; Shaw, Judge.

Action by C. M. Palmer against R. L. Lowder and wife. From judgment for plaintiff, defendants appeal. Error.

Where the parties to an executory written contract orally agree to make a new contract, the discharge of each by the other from his liability under the original contract is a sufficient consideration for the new one.

R. E Austin and J. R. Price, both of Albemarle, R. Lee Wright, of Salisbury, and Winston & Biggs, of Raleigh, for appellants.

R. L Smith, of Albemarle, and Jerome & Price, of Salisbury, for appellee.

CLARK C.J.

This is an action for specific performance of a contract to sell land. The plaintiff was a real estate agent in Albemarle, and testified that he had no interest in the land, except to sell it as a broker. The plaintiff and defendants entered into a contract relative to the lots in question, in which it was agreed that the plaintiff should have the lots laid off streets run, blocks made, and a map of the property, one of which should be turned over to the defendants, and the plaintiff was to put certain lots on the market at certain prices, and all over and above these particular prices the plaintiff was to have for his services. R. E. Austin, attorney, was requested to reduce the agreement to writing. The defendants contend that he put only a portion of the contract in writing, and hurriedly signed by defendants it was left in the attorney's hands, with instructions not to be delivered to plaintiff till further instructions from the defendants, but by some means the plaintiff obtained possession of it and put it on record. The defendants further contended that the words "to him or," which were interlined, were not put there by their authority. The defendants further contended that, a difference having arisen between the parties, they later orally agreed to abrogate the written contract and made a new contract.

There was evidence from Mrs. Lowder that the plaintiff told her of this new contract which he had made with her husband, and stated the substance of the new contract which he went over, and which was entirely inconsistent with the contract sued on; that the plaintiff told her the details of this new contract which she recited. The plaintiff objected to this evidence, and it was excluded, and defendants excepted. This exception must be sustained.

"When the contract is wholly executory, a mere agreement between the parties that it shall no longer bind them is valid, for the discharge of each by the other, from his liabilities under the contract, is a sufficient consideration of the promise of the other to forego his rights."

And the court further said:

"Such a subsequent oral agreement may enlarge the time of performance, or may vary other terms of the contract, or may waive and discharge it altogether. * * * The term 'cancellation of a contract' implies a waiver of all rights thereunder by the parties. If, after a breach by one of the parties, they agreed to cancel it and make a new contract with reference to its subject-matter, that is a waiver for any cause growing out of the original breach. And this is the rule even though the original contract was under seal." Lipschultz v. Weatherly, 140 N.C. 365, 53 S.E. 132; Brown v. Lumber Co., 117 N.C. 287, 23 S.E. 253.

The exclusion of this evidence was a material error, and entitles the defendants to a new trial. She also testified that the plaintiff told her the same thing in another conversation, and, when she asked him for the old contract, he had answered, "Mrs. Lowder, I destroyed that when we went into the new contract, because it was no good." This evidence was struck out, which was also error.

In Adams v. Battle, 125 N.C. 158, 34 S.E. 245, the court holds that in many cases an instrument under seal may be released or discharged by parol agreement or a contract subsequently entered into, notwithstanding former rulings to the contrary. The court below evidently erred by supposing that this was a conveyance, or a contract for an interest in land, which required an instrument under seal to reconvey. It was, however, merely a broker's agreement to sell the land; he agreeing to act as agent for a certain compensation, and the other parties agreeing to pay that compensation.

In Harris v. Murphy, 119 N.C. 34, 25 S.E. 708, 56 Am. St. Rep. 656, the court says:

"The rule that parol evidence will not be permitted to contradict, modify, or explain a written contract does not apply where the modification is alleged to have been made subsequent to the execution of the contract."

In Robinett v. Hamby, 132 N.C. 353, 43 S.E. 907, it is said:

The "parol waiver of a written contract to convey land amounting to a complete abandonment, will bar specific performance, but the acts and conduct constituting such abandonment must be positive, unequivocal, and inconsistent with the contract." The excluded evidence of the defendants tended to show a complete waiver on the part of plaintiff, and further that there was a new contract to take the place of the written contract which the plaintiff failed and refused to carry out, and this...