Johnston v. McRary, 50 N.C. 369, 5 Jones 369 (1858)

June 1858 · Supreme Court of North Carolina

50 N.C. 369, 5 Jones 369

R. F. JOHNSTON v. SPRUCE W. McRARY.

Where the terms of a contract, for the sale and purchase of a cotton crop, were all reduced to writing, and signed by the buyer, except as to the time of delivery, it was competent to prove by parol, that at the time the written contract was entered into, a day was fixed for the delivery of the cotton.

ActioN of Assmipsrr, tried before Bailey, J., at the last Spring Term of Davie Superior Court.

The plaintiff agreed, on 26th of May, 1855, to purchase the defendant’s cotton crop, to be delivered to him at Iloltsburg ; it was to be paid for, on delivery, by note, with certain names to it as sureties, to run for twenty days. This much of the contract was reduced to writing on a leaf of the defendant’s memorandum book. On the 5th day of June, following, the plaintiff sought the defendant at Lexington, his residence, and and at Iloltsburg, with a note, executed according to the terms agreed on, but could not find him. He had gone with the cotton to Holtsburg on the 2nd clay of June, and'it remained there till m on day following, when he took it off to Charleston and sold it. The defendant proposed to prove, that at the same time when the written contract was made, it was agreed between the parties that the delivery of the cotton was to be on Saturday, the 2nd of June. This was objected to on the part of the plaintiff, as tending to vary the written agreement. The evidence was excluded by his Honor, and the defendant excepted.

Verdict for the plaintiff. Judgment. Appeal by the defendant.

Clement, for the plaintiff.

Boy dm, for the defendant.

Battle, J.

The terms of the written contract, by which the plaintiff agreed to purchase the defendant’s crop of cotton, certainly gave to each party the right to have it performed in a reasonable time. The place of performance was fixed upon in the written terms, but the precise clay was not therein specified, and yet, as the parties lived in different counties, and had to do concurrent acts, it was necessary that some day should be agreed on for that purpose. This must, of necessity, be clone by parol, or w© must hold that either had the power to nullify the contract, by refusing to fix upon the day by an agreement in writing. The counsel, for the plaintiff, does not insist upon this, blit admits that it might have been done by parol, after the time when the written contract of purchase and sale was entered into ; Shaw v. Grandy, ante 56. He objects, however, to the parol proof, that it was done at the time of the contract, because it was not inserted among the written terms, and would, therefore, have the effect to vary them. This, is, we think, taking too strict a view of the subject. It is conceded that parol testimony is inadmissible to contradict, vary or add to, a written instrument. To that effect, are all the cases, referred to by the plaintiff’s counsel; but in the very first one,, which he cites, to wit, Clark v. McMillan, 2 Car. L. Eepos. 265, it is said that such testimony is admissi-sible to explain and elucidate a written contract left doubtful. Such, we apprehend, is the purpose of the parol testimony offered -in the present case. The written contract left the time of performance open and uncertain, and the proof was offered to show that a particular day had been agreed upon, to make certain, what was otherwise indefinite. This was not in any proper sense to contradict, vary, or add to, the written contract, but was rather to explain and elucidate what the parties meant by the reasonable time, implied in the written terms, and whether it was thus explained and elucidated' at the same time when the written contract was made, or at a subsequent time, cannot make any difference. It was error, therefore, in the Court to reject the testimony, for which the judgment must be reversed, and a new trial granted.

Fee Cueiam. Judgment reversed.