Dawson v. Wright, 208 N.C. 418 (1935)

Sept. 18, 1935 · Supreme Court of North Carolina

208 N.C. 418

BRAXTON B. DAWSON v. WILLIS S. WRIGHT.

(Filed 18 September, 1935.)

1. Evidence J a — Competency of parol evidence to explain written instrument.

Parol evidence is inadmissible to vary or contradict tbe terms of a written instrument, but where a contract is not required by law to be in writing, and a part of it is written and a part is not, parol evidence of the unwritten part, if it does not contradict the writing, is admissible to establish the contract in its entirety.

2. Same — Parol evidence held competent in this case as tending to establish unwritten part of agreement.

Parol evidence that credit memorandum given by an automobile dealer was to be used only in the purchase of a new car and not a used car held competent, the parol evidence not contradicting the writing, but tending to establish the unwritten part of the agreement.

Appeal by plaintiff from Granmer, J., at March Term, of Pasqtto-TANK.

Civil action to recover for alleged breach of “Credit Memorandum.” On 14 September, 1933, tbe plaintiff delivered to tbe defendant a wrecked Chevrolet car and took in exchange credit memorandum wbicb was to be allowed as a credit or reduction “on tbe list price or prevailing price of $200.00 on a two-ton Dodge truck (short wheel base) or either $135.00 on a Plymouth four-door sedan. It being optional with tbe bolder of this Credit Memorandum wbicb ear or truck be or she wishes to buy.”

Thereafter, tbe plaintiff transferred said credit memorandum to bis brother, W. C. Dawson, who presented it as a cash item in an exchange of automobiles with tbe defendant. Tbe defendant declined to honor tbe memorandum, contending tbat it was only to be used in tbe purchase of a new car or truck; and tbat such was tbe understanding of tbe parties at tbe time of its issuance. Objection; overruled; exception.

This action is to recover damages for defendant’s failure or refusal to honor tbe credit memorandum under tbe circumstances of its tender.

From a verdict for defendant, tbe plaintiff appeals, assigning errors.

McMullan & McMullan for plaintiff.

M. B. Simpson for defendant.

Stagy, 0. J.

Tbe appeal presents tbe single question whether reversible error was committed in allowing tbe defendant to state in bis oral testimony, over objection, tbat it was a part of tbe understanding between tbe parties tbe credit memorandum was to be used and allowed only in tbe purchase of a new car or truck.

Tbat parol evidence is inadmissible to vary or contradict tbe terms of a written instrument is so well established in tbe law of evidence as to be well nigh axiomatic. Carlton v. Oil Co., 206 N. C., 117, 172 S. E., 883; Coral Gables v. Ayers, post, 426. On tbe other band, it is equally well established tbat where a contract is not one which tbe law requires to be in writing, and a part of it is written and a part is not, evidence of tbe unwritten part, if it does not contradict tbe writing, is admissible for tbe purpose of rounding out tbe agreement or establishing tbe contract in its entirety. Henderson v. Forrest, 184 N. C., 230, 114 S. E., 391; Palmer v. Lowder, 167 N. C., 331, 83 S. E., 464; Typewriter Co. v. Hdwre. Co., 143 N. C., 97, 55 S. E., 417; S. v. McClure, 205 N. C., 11, 169 S. E., 809.

In Evans v. Freeman, 142 N. C., 61, 54 S. E., 847, tbe two rules are succinctly stated by Walicer, J., as follows: “It is very true tbat, when parties reduce their agreement to writing, parol evidence is not admissible to contradict, add to, or explain it; and this is so, although tbe particular agreement is not required to be in writing, tbe reason being tbat tbe written memorial is considered to be tbe best, and therefore is declared to be tbe only evidence of what tbe parties have agreed, as they are presumed to have inserted in it all tbe provisions by which they intended or are willing to be bound. Terry v. R. R., 91 N. C., 236. But this rule applied only when tbe entire contract has been reduced to writing, for if merely a part has been written, and tbe other part has been left in parol, it is competent to establish tbe latter part by oral evidence, provided it does not conflict with what has been written.”

On tbe trial, tbe latter rule was thought to be applicable to tbe facts of tbe instant case. With this we agree. It is not discernible in what particular tbe testimony of defendant runs counter to tbe terms of tbe written instrument. Indeed, some of its language lends color to tbe defendant’s understanding. Tbe matter was properly submitted to tbe jury. Tbe verdict and judgment will be upheld.

No error.