A & a Discount Center, Inc. v. Sawyer , 27 N.C. App. 528 ( 1975 )

219 S.E.2d 532 (1975) 27 N.C. App. 528

A & A DISCOUNT CENTER, INC.
v.
Quentin R. SAWYER and Lou L. Sawyer.

No. 7518SC512.

Court of Appeals of North Carolina.

November 19, 1975.

Alspaugh, Rivenbark & Lively by James B. Rivenbark, Greensboro, for plaintiff appellee.

Harris & McEntire by Mitchell M. McEntire, Graham, for defendants-appellants.

CLARK, Judge.

The crux of defendants' argument on appeal is that the trial judge erred in excluding the testimony offered by them relative to the representations of plaintiff's salesman as to the suitability of the swimming pool for commercial use. When the trial court ruled that this evidence was not admissible, counsel for the defendants informed the court that he wanted to show that the purpose (commercial use of the pool) was known by the parties. The court replied that "the terms of the contract speak for itself and what led up to that signing is another proposition." It is apparent from this statement and other rulings on the evidence that the testimony offered by the defendants relative to suitability for commercial use was excluded by the court because of the parol evidence rule. It is also obvious that in rendering judgment for the plaintiff the court considered no oral agreement or promise outside the written terms of the contract.

The record on appeal does not disclose the standards imposed by local government for commercial swimming pools. However, it must be inferred from the evidence in the record that there were local ordinances which required that commercial pools meet certain physical standards which were not required for residential pools. Defendants testified that they had no knowledge of the standards required for commercial use of a swimming pool, and that they told plaintiff's salesman they would need to use it commercially in order to pay for it. Apparently, the evidence excluded by the trial court tended to show that plaintiff's salesman told defendants that the swimming pool could be used by them commercially. This, in effect, was a representation or warranty that when the pool was installed as specified in the contract it would meet the standards imposed by local authority for commercial use. The printed form contract was then executed by the parties, and it contained no provision relating to suitability for either commercial or residential use. Under these circumstances, the written contract was not intended by the parties to include this representation.

If testimony is offered to prove that a party to the written contract made extrinsic promises, warranties, or representations the testimony is generally excluded by the parol evidence rule.

"Nevertheless, such writings do not always state the entire bargain, even in the absence of such fraud or mistake as justify reformation or a decree setting aside an ordinary contract. The parties may merely omit one of the promises or warranties actually made. No supposedly implacable ``parol evidence rule' should close the door to proof that there was such an omission. The burden of establishing it may be heavy; but the surrounding circumstances and the testimony of disinterested witnesses may bear it successfully. . . ." 3 Corbin on Contracts, § 585, p. 481 (1960).

If a writing is intended to supersede all other agreements relating to the transaction, it may be termed a total or complete integration; if it supersedes only a part, it is a partial integration. In the latter case those portions of the transaction which were not intended to be superseded are legally effective and therefore may be shown by parol. 2 Stansbury, N.C. Evidence 2d, (Brandis rev. 1973) § 252.

It is our opinion that the printed form contract executed by the parties was not intended to integrate and supersede all of the negotiations, representations and agreements between the parties, and that the evidence of the representation or warranties that the pool would be suitable for commercial use was not excluded by the parol evidence rule and was erroneously excluded by the trial court.

New trial.

BRITT and PARKER, JJ., concur.