Wilson v. Scarboro

• Decision Date: 29 October 1913
• Citation: 79 S.E. 811,163 N.C. 380
• Parties: WILSON v. SCARBORO et al.
• Court: North Carolina Supreme Court

79 S.E. 811

163 N.C. 380

WILSON v. SCARBORO et al.

Supreme Court of North Carolina

October 29, 1913

Appeal from Superior Court, Wake County; Ferguson, Judge.

Action by W. S. Wilson against S. H. Scarboro and others. Judgment for defendants, and plaintiff appeals. New trial granted.

Where notwithstanding there was no evidence of fraud in the alleged omission of a certain stipulation from a contract, the court submitted that question to the jury, a finding that the provision was omitted by fraud or mistake was unsustainable.

This action was brought to recover damages of the defendants for entering upon land and unlawfully taking possession of and detaining certain timber thereon. The defendants "bargained and sold and conveyed" to the plaintiff certain timber described in the contract of conveyance, with the right and privilege to cut and remove the same within five years from April 5, 1909. While the contract does not so state, the defendants in their answer allege that plaintiff was required "to cut the timber continuously, after once beginning to cut, until the cutting of the same should be completed unless while cutting the timber the price of lumber should decline, so that he could not cut the timber at a profit," and that said agreement was omitted from the contract by the mutual mistake of the parties or by the mistake of defendants and the fraud of the plaintiff, and that plaintiff further promised to put up a guaranty fund of $1,000 or give a note for that amount to one James Moore, who held a mortgage on the land, to insure the full and faithful performance of the contract. This statement of facts, with the issues and answers thereto, will sufficiently explain the matters in controversy. The following verdict was rendered by the jury:

"(1) Did the defendants execute a contract with plaintiff to sell him the timber described in the complaint, as alleged therein? Answer: Yes.

"(2) Was there an agreement between the plaintiff and the defendants, before the execution of the written contract that the plaintiff would cut the timber described in the complaint continuously, after once beginning to cut, until the cutting of the same was completed, unless while cutting the same the price of lumber should decline so that he could not cut the said timber at a profit, as alleged in the amendment to the answer? Answer: Yes.

"(3) If so, was such agreement to continuously cut such timber omitted from the contract by fraud of the plaintiff, or by the mutual mistake of the plaintiff and the defendants? Answer: Yes.

"(4) Did plaintiff, at the time of the verbal contract, agree to pay to the defendants the sum of $1,000 as security or guaranty for the proper cutting of the timber described in the complaint and for the full performance of the contract between the plaintiff and defendants? Answer: Yes.

"(5) Did plaintiff, at the time of and contemporaneously with the execution of the written contract, agree with defendants that he would give to Mr. James Moore a note for $1,000, which would be as satisfactory to the said Moore as a deposit of $1,000 in money, as a guaranty for the performance of the terms of the contract between plaintiff and defendants, and that, failing to give such note to the said Mr. Moore, he would desist from cutting defendants' timber and remove his mills from their lands? Answer: Yes.

"(6) Did plaintiff give such note to the said James Moore? Answer No.

"(7) Did defendants waive the giving of such note? Answer: No.

"(8) Did plaintiff suspend cutting and paying for defendants' timber after he had begun to cut the same, in violation of his agreement with defendants? Answer: Yes.

"(9) Did plaintiff remove from defendants' lands timber cut thereon before paying defendants for the same? Answer: No.

"(10) Did plaintiff cut stumps higher than 24 inches, or did he leave logs lying in the woods, or timber in the tops of trees, or leave timber standing scattered over places partly cut over, in violation of the contract with defendants? Answer: Yes.

"(11) If plaintiff violated the contract in any or all of the respects mentioned in the preceding issue, what amount of damages in money did the defendants sustain thereby? Answer: $6.75.

"(12) Did plaintiff negligently permit fire to be communicated to defendants' lands and thereby cause damage to defendants' timber, wood, undergrowth, etc.? Answer: No.

"(13) If your answer to the preceding issue shall be 'Yes,' what amount of damages did defendants sustain thereby? No answer.

"(14) Did defendants wrongfully and unlawfully refuse to allow plaintiff to re-enter upon their lands and to resume the cutting of their timber under said contract, after he had suspended the cutting of the same? Answer: No.

"(15) If your answer to the preceding issue shall be 'Yes,' what damage did plaintiff sustain thereby? No answer."

Judgment on the verdict for the defendants, and plaintiff appealed.

Armistead Jones & Son, Douglass & Douglass, R. N. Simms, and W. H. Lyon, Jr., all of Raleigh, for appellant.

Jones & Bailey, of Raleigh, for appellees.

WALKER, J. (after stating the facts as above).

The defendants allege that there was a stipulation as to the manner of cutting the timber which was omitted from the contract by mutual mistake or by the fraud of the plaintiff inducing a mistake on the part of the defendants. But we do not find in the record any evidence of fraud; and as the jury, in answer to the third issue, have found that there was fraud or mutual mistake, without designating which of the two, we are unable to tell whether their answer was based upon the fraud or the mistake. The court submitted the question of fraud to the jury against an express prayer of the plaintiff that there was no evidence of fraud, and consequently we have an erroneous finding upon the third issue. The jury might have found that there was fraud and no mistake and yet, misled by the erroneous ruling and instructions of the court, have given the answer, which is fully responsive to the issue. This error so permeates the entire case that it is sufficient of itself to require a new trial. It makes no difference that the alleged agreement was made, unless there was fraud or mutual mistake, for which the contract will be corrected and made to record the truth.

There was also error in the rulings upon the fifth issue, as evidence was admitted, over plaintiff's objection, of the agreement as to the deposit of $1,000 or the giving of a note of like amount to James Moore as a security for the faithful performance of the contract. It evidently tended to vary the contract materially and even to contradict it. It was proposed by it to show an oral agreement, not inserted in the contract, which, if broken by the plaintiff, would terminate the timber contract and divest the plaintiff of all rights thereunder.

Where the law does not require the contract to be in writing and it was not intended that the written instrument should state the whole of the agreement between the parties thereto, but that a part thereof should rest in parol, the latter part may be proved, if it does not materially vary or contradict that which has been written but is consistent therewith. The rule is thus stated in Clark on Contracts (2d Ed.) at page 85 "Where a contract does not fall within the statute, the parties may, at their option, put their agreement in writing or may contract orally or put some of the terms in writing and arrange others orally. In the latter case, although that which is written cannot be aided by parol evidence, yet the terms arranged orally may be proved by parol, in which case they supplement the writing and the whole constitutes one entire contract." Commenting on this passage in Evans v. Freeman, 142 N.C. 61, 54 S.E. 847, we said: "In such a case there is no violation of the familiar and elementary rule we have before mentioned (against varying or contradicting a written agreement), because in the sense of that rule the written contract is neither contradicted, added to, nor varied; but, leaving it in full force and operation as it has been expressed by the parties in the writing, the other part of the contract is permitted to be shown in order to round it out and present it in its completeness the same as if all of it had been committed to writing." Numerous cases in this court sustain this rule. Cobb v. Clegg, 137 N.C. 153, 49 S.E. 80; Walker v. Cooper, 150 N.C. 129, 63 S.E. 681; Typewriter Co. v. Hardware Co., 143 N.C. 97, 55 S.E. 417; Evans v. Freeman, 142 N.C. 61, 54 S.E. 847; Walker v. Venters, 148 N.C. 388, 62 S.E. 510; Basnight v. Jobbing Co., 148 N.C. 350, 62 S.E. 420; Woodson v. Beck, 151 N.C. 144, 65 S.E. 751, 31 L. R. A. (N. S.) 235. But the evidence admitted in our case does not fall within the well-settled rule, as it essentially varies and directly contravenes the written contract, incorporating in it a clause which, in a certain contingency, would nullify or destroy it. This cannot be done. When parties reduce their agreement to writing, parol evidence is not admissible to contradict, add to, or vary it; and this is so although the particular agreement is not required to be in writing, the reason being that the written memorial is considered to be the best and therefore is declared to be the only evidence of what the parties have agreed, as they are presumed to have inserted in it all the provisions by which they intended or are willing to be bound. Evans v. Freeman, supra; Terry v. Railroad, 91 N.C. 236. In Evans v. Freeman, supra, it was further said: "Numerous other cases have been decided by this court in which the application of the same principle has been made to various combinations of facts, all tending, though, to the same general conclusion that such...