Neal v. Marrone , 239 N.C. 73 ( 1953 )

79 S.E.2d 239 (1953) 239 N.C. 73

NEAL et al.
v.
MARRONE.

No. 597.

Supreme Court of North Carolina.

December 16, 1953.

Milliken & Richardson, Monroe, for plaintiffs, appellees.

E. Osborne Ayscue, Monroe, for defendant, appellant.

JOHNSON, Justice.

A contract not required to be in writing may be partly written and partly oral. However, where the parties have deliberately put their engagements in writing in such terms as import a legal obligation free of uncertainty, it is presumed the writing was intended by the parties to represent all their engagements as to the elements dealt with in the writing. Accordingly, all prior and contemporaneous negotiations in respect to those elements are deemed merged in the written agreement. And the rule is that, in the absence of fraud or mistake or allegation thereof, parol testimony of prior or contemporaneous negotiations or conversations inconsistent with the writing, or which tend to substitute a new and different contract from the one evidenced by the writing, is incompetent. See Whitehurst v. FCX Fruit & Vegetable Service, 224 N.C. 628, 32 S.E.2d 34; Jefferson Standard Life Insurance Co. v. Morehead, 209 N.C. 174, 183 S.E. 606; Miller v. Farmers Federation, 192 N.C. 144, 134 S.E. 407; Acme Mfg. Co. v. McPhail, 181 N.C. 205, 106 S.E. 672; Evans v. Freeman, 142 N.C. 61, 54 S.E. 847; Moffitt v. Maness, 102 N.C. 457, 9 S.E. 399; Ray v. Blackwell, 94 N.C. 10; Stansbury, North Carolina Evidence, Sec. 253; Wigmore on Evidence, Third Ed., Vol. IX, § 2430; Restatement of the Law, Contracts, §§ 237, 240, and 241; 20 Am.Jur., Evidence, §§ 1099, 1100, 1137, and 1138; 12 Am.Jur., Contracts, § 235; 32 C.J.S., Evidence, § 851.

In the case at hand the defendant alleges that the entire contract between the parties was partly written and partly oral. He relies upon parol elements allegedly made and agreed upon prior to and contemporaneously with the execution of the written contract. But he does not allege fraud or mistake, nor does he seek reformation or rescission. The parol elements set up in paragraph 1 of the Further Answer and Defense are totally inconsistent with and contradictory of the provisions of the written contract which fix the plaintiffs' compensation and determine the purchase price of the lands. In these crucial particulars the alleged parol elements declared on by the defendant tend to establish an entirely different contract from the one evidenced by the writing. In the absence of allegations of fraud or mistake, any evidence proffered by the defendant in support of such matters would be incompetent. Acme Mfg. Co. v. McPhail, supra, 181 N.C. 205, 106 S.E. 672; Evans v. Freeman, supra, 142 N.C. 61, 54 S.E. 847. It necessarily follows that the allegations of paragraph 1 are extraneous and irrelevant. They were properly stricken. G.S. § 1-153; Spain v. Brown, 236 N.C. 355, 72 S.E.2d 918; Brown v. Hall, 226 N.C. 732, 40 S.E.2d 412; Parlier v. Drum, 231 N.C. 155, 56 S.E.2d 383.

As to the rest of the Further Answer and Defense, paragraphs 2, 3, and 4, it is noted that the allegations of paragraph 3 are nothing more than erroneous conclusions of law; whereas paragraphs 2 and 4 contain no allegations which are pertinent to or make for a valid defense, G.S. § 1-135. All these paragraphs were properly treated by the presiding judge as irrelevant and redundant.

The judgment below is

Affirmed.