The principal question raised on tbis appeal is whether tbe plaintiff was prejudiced on tbe trial below by tbe exclusion of proper evidence for tbe consideration of tbe jury on tbe determinative issue. We think so.
Plaintiff seeks to establish a parol trust, alleging that be and defendant Floyd Holt entered into a trust agreement after tbe foreclosure sale, whereby tbe land was to be purchased by Holt for tbe benefit of the plaintiff. Considerable evidence offered by plaintiff tending to show *387negotiations and agreements with Holt concerning tbe purchase of tbe land, prior to tbe foreclosure, was excluded because plaintiff bad alleged an agreement made after tbe foreclosure. Plaintiff contends tbat while tbe final agreement was concluded after tbe foreclosure, tbe negotiations leading to it began long prior thereto, and tbat be has a right to show these preliminary negotiations and agreements, and to show what was done pursuant thereto, as tbe basis for tbe final trust agreement. To this end be asked to be allowed to amend bis complaint so as to allege tbe preliminary negotiations. This tbe judge, in tbe exercise of bis discretion, refused to permit. C. S., 547; McIntosh, N. C. Prac. & Proc., p. 513. However, tbe judge did permit tbe filing of a more restricted amended complaint, and it was upon tbe latter tbat tbe case was tried. Speas v. Greensboro, 204 N. C., 239, 167 S. E., 807.
In tbe course of tbe trial tbe judge below excluded plaintiff’s evidence tending to show tbe following: (1) Tbat prior to tbe foreclosure sale plaintiff and defendant Floyd Holt agreed tbat plaintiff should consent to a foreclosure, defendant Holt agreeing to bid in tbe property, to bold title until tbe purchase price bad been paid, and finally to purchase for himself from plaintiff a part of this property; (2) tbat long after defendants allege they bad bought tbe farm, plaintiff brought a surveyor to tbe farm to run certain boundary lines and plaintiff and tbe surveyor discussed with both defendants tbe proposed survey, neither of defendants then made any claim to any interest in tbe farm; (3) tbat when defendant Floyd Holt gave plaintiff tbe receipt for tbe down payment of tbe purchase price, Holt admitted tbat be held tbe land as trustee under a parol trust for tbe benefit of plaintiff; (4) tbat witness Sykes beard plaintiff and defendant Floyd Holt state tbe terms of tbe trust agreement in tbe presence of each other, and tbat, on several other occasions, be beard defendant Holt admit tbat be held title to tbe farm in trust for plaintiff; and (5) tbat witness Cole knew tbe terms of tbe trust agreement between plaintiff and defendant Holt; tbat be discussed tbe trust agreement with representatives of tbe Land Bank both before and after tbe foreclosure sale and tbat they were favorable to tbe sale of tbe land to Holt to be held in trust for plaintiff; tbat be, Cole, bad, and was ready to furnish to plaintiff tbe money demanded by tbe Land Bank as down payment on tbe purchase of tbe farm; tbat be, Cole, was present at tbe foreclosure sale ready to bid in tbe farm for plaintiff and would have done so but for tbe trust agreement which be then knew existed between plaintiff and defendant Holt.
“Anything which shows tbe intention or tbe actual contract of tbe parties is material, and any evidence which goes to show tbe real intention of tbe parties is admissible whether it be by way of conduct or documentary in nature.” 34 Cyc., 980, quoted in Potato Co. v. Jeanette, *388174 N. C., 236, 93 S. E., 795. As stated by Allen, J., in Bank v. Stack, 179 N. C., 514, 103 S. E., 6: “It is not required that the evidence should bear directly on the question in issue, but it is competent and relevant if it is one of the circumstances surrounding the parties, and necessary to be known to properly understand their conduct or motives, or to weigh the reasonableness of their contentions.”
In Potato Go. v. Jeanette, supra, this Court said: “While negotiations leading to the execution of the contract are merged in it at law, they are competent in equity to show what was the real agreement, for the purpose of correcting the instrument and doing justice.” Quoted with approval in Ollis v. Board of Education, 210 N. C., 489, 187 S. E., 772. In the case in hand there is no instrument, but the rule applies with equal force to the proof of an oral contract.
We cannot say that this excluded testimony did not prejudice plaintiff’s case, as the jury found that there was no trust agreement between plaintiff and defendant Floyd Holt. What the jury would have found had this excluded testimony been admitted is a matter for speculation. We think, however, that plaintiff is entitled to an opportunity to present testimony of this character to the jury.
The exceptions bearing upon the class of excluded testimony cover in the main the subject matter of the 263 assignments of error. We do not deem it necessary to consider other assignments, as the matters to which objection is there made may not recur on another trial.
New trial.