Tomlinson v. Brewer

197 S.E.2d 901 (1973) 18 N.C. App. 696

William E. TOMLINSON
v.
Kidd BREWER and wife, Mary Frances Linney Brewer.

No. 7310SC487.

Court of Appeals of North Carolina.

July 25, 1973.

Twiggs & McCain by Howard F. Twiggs and Grover C. McCain, Jr., Raleigh, for plaintiff appellant.

Wolff, Harrell & Mann by Bernard A. Harrell, Raleigh, for defendant appellees.

BALEY, Judge.

The sole question for determination on this appeal is the admissibility of parol evidence to vary, add to, or contradict the written instrument executed by the defendant, Kidd Brewer, and delivered to the plaintiff, Tomlinson, contemporaneously with the transfer to Brewer and his wife of a fee simple deed to the property involved upon which the plaintiff seeks to engraft a parol trust.

In North Carolina parol evidence may be admitted for the purpose of engrafting a parol trust on the legal title provided the declaration of trust is not one in favor of the grantor. Electric Co. v. Construction Co., 267 N.C. 714, 148 S.E.2d 856; Thompson v. Davis, 223 N.C. 792, 28 S.E.2d 556; Insurance Co. v. Morehead, 209 N.C. 174, 183 S.E. 606.

Conceding that the parol evidence rule would not prohibit evidence to vary or contradict the provisions of the deed to the defendants and would permit the establishment of a parol trust, that is not the situation which is presented in this case. We are confronted with another written instrument which was delivered to the plaintiff at the same time the deed was executed and granted to him an option to purchase an interest in the land described in the deed. It set out the terms under which such option could be exercised. The written instrument primarily involved is this option agreement, not the deed.

The plaintiff contends that the written agreement executed by the defendant, Kidd Brewer, was not intended by the parties to be final and was accepted by him only until the total agreement could be reduced to writing.

As stated in 2 Stansbury's N.C. Evidence, Brandis Revision, § 251:

"Translated into the language of the substantive law, the parol evidence rule may be expressed thus: Any or all parts of a transaction prior to or contemporaneous with a writing intended to record them finally are superseded and made legally ineffective by the writing."

The parol evidence rule thus applies to any or all parts of a transaction prior to or contemporaneous with a written instrument which was intended to record them finally.

In Neal v. Marrone, 239 N.C. 73, 77, 79 S.E.2d 239, 242, the rule is stated as follows:

"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." (Emphasis added.)

In this case the written instrument executed contemporaneously with the transfer of title dealt with the following elements:

1. Names the parties and specifically the plaintiff, William E. Tomlinson, Jr., or assigns.

2. Made a direct unequivocal promise to sell.

3. Set out the 49/100 interest involved.

4. Described and identified the property.

5. Named the price at $22,500.00.

6. Limited the time for exercise of the right to purchase, that is, within one year from date.

7. Had a specific date confirming its execution at the time the deed was made on 26 May 1967.

8. Was properly signed by the defendant Kidd Brewer.

If the parol evidence offered by the plaintiff will vary, add to, or contradict any of the elements dealt with in the written instrument, it is inadmissible. Fortunately, the court conducted a voir dire hearing and all the evidence which plaintiff proposes to offer is known. In material part it does vary, add to, or contradict the written instrument. The written instrument is clear that the plaintiff was entitled to purchase 49/100 interest in the Brewer property at a price of $22,500.00 within one year from 26 May 1967. If the plaintiff had exercised his option, there would have been no legal action. None of the plaintiff's oral testimony is consistent with the privilege accorded him by the option to purchase 49/100 interest in the property within one year for a purchase price of $22,500.00. To the contrary, plaintiff attempts to submit oral evidence that the defendants held the 49/100 interest in the property in trust for him and that he owned such interest by virtue of an oral agreement with defendant Kidd Brewer. Plaintiff's testimony concerned an alleged agreement to own the land together and split the profits out of which the $22,500.00 was to be paid to Brewer. All of this evidence is contrary to the terms of the written instrument, and the parol evidence rule forbids its admission as evidence.

In Williams v. McLean, 220 N.C. 504, 17 S.E.2d 644, the plaintiff alleged a parol trust arising from an oral agreement by defendant and plaintiff that defendant would buy 158 acres of land for the plaintiff and take title in defendant's name and then convey to the plaintiff. Defendant purchased the land and later gave plaintiff a written option to purchase 145 acres for a set price which option the plaintiff exercised. In plaintiff's action to secure the additional 13 acres, the court referred to the prior oral negotiations as merged in the subsequent written option and stated:

"Thus it seems the parties integrated their negotiations and agreements into the written memorial embodying an unequivocal offer to sell a certain number of acres of land on definite terms. This written designation of the terms of the contract was executed by the defendants and accepted by the plaintiff. It is established, not only as a rule of evidence, but also as one of substantive law, that matters resting in parol leading up to the execution of a written contract are considered merged in the written instrument.. . . The writing is conclusive as to the terms of the bargain." Williams v. McLean, supra at 506, 17 S.E.2d at 645-646.

While it is true the option was actually exercised in the Williams case, it is quite similar in facts to the case at bar and the principles involved are here applicable.

The court below was correct in excluding the parol testimony offered by the plaintiff and in granting summary judgment for the defendants.

Affirmed.

BROCK and VAUGHN, JJ., concur.