Woodson v. Beck

• Decision Date: 13 October 1909
• Citation: 65 S.E. 751,151 N.C. 144
• Parties: WOODSON v. BECK.
• Court: North Carolina Supreme Court

65 S.E. 751

151 N.C. 144

WOODSON v. BECK.

Supreme Court of North Carolina

October 13, 1909

Appeal from Superior Court, Vance County; O. H. Allen, Judge.

Action by R. B. Woodson against J. W. Beck. From a judgment for plaintiff, defendant appeals. Affirmed.

Where the contract is not within the statute of frauds, the parties may put their agreement partly in writing and partly in parol, in which case the terms orally agreed on may be proved by parol, provided the parol evidence does not vary, add to or contradict the written agreement, but leaves it in full force.

The plaintiff sued the defendant before a justice of the peace on the following duebill: "Henderson, N.C. December 4th '08. Due R. B. Woodson $92.92 (ninety two dollars 92/100) on a policy of life insurance applied for this day in the Equitable Life, said $92.92 to be paid when policy is delivered. [Signed] J. W. Beck." The defendant admitted the execution of the duebill and a tender of the policy for $2,000, an ordinary life policy, but alleged that the contract between him and plaintiff was that the defendant could purchase the new policy and pay premiums on the same by the surrender of $1,000 policy in the same company that would mature in April, 1909, and the payment of $9 per year, and that plaintiff refused to perform said contract, and defendant therefore denied all liability on the duebill. There was no allegation of fraud or mistake. The justice of the peace rendered judgment against defendant, from which he applied to the superior court. At the trial in the superior court his honor submitted the following issue: "Is the defendant indebted to plaintiff; and, if so, in what amount?" The jury, under instructions from his honor, responded: "Yes; $92.98 and interest from December 30, 1908." The defendant appealed.

T. T Hicks, for appellant.

Henry T. Powell, for appellee.

MANNING J.

The only question presented by this appeal is the correctness of his honor's ruling, excluding the following testimony of the defendant: "Plaintiff offered to insure my life. I told him I wanted no insurance. He said: 'You have an equitable policy that I can trade you for to your advantage.' Asked to see it, I showed it. He saw it was payable to my wife. He said he'd write the company, and later said he had done so. My policy for $1,000 was a 20-payment policy, on which I had paid 19 payments. He proposed to get me a new policy for $2,000, and that my old policy would be accepted in payment of all premiums to be due on it, except $9 per year. In other words, the old $1,000 policy was to be exchanged for a new $2,000 policy, and I was to pay $9 a year additional. I agreed to this, and was examined, signed the application and the duebill, which I understood was an order binding me to surrender the old policy. Nothing was ever said about my paying $92.92 per year for a new $2,000 policy. I never agreed to do so. Three weeks later, when he brought the policy for $2,000 which calls for $92.92 per year from me for life, he refused to accept the old policy, but said I must arrange the surrender of it to the company, and he demanded of me $92.92, and that I take the new policy. This I refused. The policy he offered me is the same as now shown me; and the application I signed is, to the best of my knowledge, copied correctly in it." This testimony was excluded by his honor; there being no allegation of fraud or mistake, because it contravenes the well-settled and elementary rule of evidence that it is not permissible to add to, vary, or contradict the terms of a written agreement by a contemporaneous parol agreement, even where no statutory enactment requires the agreement to be in writing. The more recent cases in which this rule is discussed are Walker v. Cooper, 150 N.C. 129, 63 S.E. 681; Basnight v. Jobbing Co., 148 N.C. 350, 62 S.E. 420; Walker v. Venters, 148 N.C. 388, 62 S.E. 510; Medicine Co. v. Mizell, 148 N.C. 384, 62 S.E. 511; Cobb v. Clegg, 137 N.C. 153, 49 S.E. 80; Evans v. Freeman, 142 N.C. 61, 54 S.E. 847. In these cases will be found cited the earlier cases. It is contended, however, by the defendant that the evidence does not contravene this rule, but was admissible under the rulings of this court in the cases of Typewriter Co. v. Hardware Co., 143 N.C. 97, 55 S.E. 417, and Evans v. Freeman, 142 N.C. 61, 54 S.E. 847, and the cases therein cited. The principle reaffirmed in these cases is that, "where the contract does not fall within the statute of frauds, the parties may put their agreement in writing, or 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." Clark on Contracts (2d Ed.) p. 85.

The limitation, however, upon the application of this principle, recognized in all the cases in which this principle has been applied, is that the oral collateral agreement, or that part of the agreement not reduced to writing, cannot be permitted to vary, add to, or contradict the written agreement, "but leaving it in full force, 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." Evans v. Freeman, supra. The manifest purpose and effect of the evidence offered by the defendant is to show by parol a contract entirely variant from, and inconsistent with, the written agreement. The defendant denies that what the writing contains was, in fact, any part of his agreement with plaintiff, though admitting by his admission of signature to it its obligatory force in law. He says the sum of $92.92 was not mentioned at all; that he thought the duebill was an order for the surrender of the old policy; that the only agreement he made was to buy an ordinary life policy for $2,000, as was tendered him, and to pay for the entire contract, to run for his life, by surrendering his 20-payment policy of $1,000 and by the payment of $9 per year. There is no part of the written contract that is not varied and contradicted by this parol agreement. For the contract contained in the writing the defendant proposed to substitute, by parol, an entirely different contract. In our opinion the proposed testimony was not competent or admissible under the decision of this court in any case. In Typewriter Co. v. Hardware Co., supra, the defendant proposed to prove, as its defense to an action upon its written promise to pay for a typewriter, that at the time the agent of defendant agreed to allow it a credit of $40 as commissions on four machines sold by him. This court held the evidence admissible because it did not conflict with the written part of the agreement.

In Evans v. Freeman, supra, the defendant offered to prove by parol, as his defense to his notes sued upon, that it was agreed that it should be paid out of the proceeds of the sale of the patent right for which it was given. This court held the evidence competent, as not in conflict with the written part of the agreement, holding "that it is competent to show by oral evidence a collateral agreement as to how an instrument for the payment of money should, in fact, be paid, though the instrument is necessarily in writing...