Typewriter Co. v. . Hardware Co. , 143 N.C. 97 ( 1906 )

This record and case on appeal disclose no error which gives the plaintiff any just ground for complaint.

The testimony offered by defendant admitting the written order to be a part of the contract, tended to establish, as an (100) additional feature, a further stipulation resting in parol as to the method by which a part of the obligation should be paid. It did not contradict the written paper, but only tended to show that such paper did not contain the entire contract.

It is well established that as between the original parties to an executory agreement such testimony is competent.

The principle upon which the doctrine rests, and instances where same has been applied, are so clearly set forth in an opinion at this term byMr. Justice Walker that further discussion of the question is considered unnecessary. Evans v. Freeman, 142 N.C. 61.

In that well-considered opinion, as especially applied to the facts of the present case, it is said:

"It is competent to show, by oral evidence, a collateral agreement as to how an instrument for the payment of money should in fact be paid, though the instrument is necessarily in writing and the promise it contains is to pay in so many dollars." Citing several decisions of our own Court.

And further:

"Numerous other cases have been decided by this Court in which the application of the same principle has been made to various combinations of facts, all tending, though, to the same general conclusion, that such evidence is competent where it does not conflict with the written part of the agreement and tends to supply its complement or to prove some collateral agreement made at the same time. The other terms of the contract may generally thus be shown where it appears that the writing embraces some, but not all, of the terms."

The testimony, then, offered by the defendant was clearly competent, and if accepted by the jury, it establishes a valid defense to the amount allowed in the verdict.

The plaintiff makes further objection to the testimony of the witness, Gregg, that by its admission Allen was allowed to explain or vary (101) a contract already entered into and complete, by subsequent statements, when there was no evidence that the original contract was abandoned and a new one entered into; and "there was no consideration for any subsequent contract."

But we do not think this is a correct interpretation of the testimony.

It is true the witness said: "I called Allen and Sossaman and asked Allen to explain the contract to me, as I didn't understand it." This was as to written order for the machine and which contained certain stipulations as to commissions which were to some extent ambiguous.

The reply of Allen, however, did not, and was not intended to explain away or vary the contract at all, but was an admission or statement on his part as to what the contract was. And it cannot be contended that this was without authority.

It was a statement by the agent at the time and as a part of the transaction. The order had been signed, but it was then in the office, and its meaning and terms were still being discussed. And it is accepted law that one who adopts and seeks to enforce a contract made for him by an agent is bound by its terms and stipulations.

As said in Corbett v. Clute, 137 N.C. 551, "If he claims the benefit, he must accept the burdens." Citing Harris v. Delamar, 38 N.C. 219; Blackv. Baylees, 86 N.C. 527.

Nor can the objection to the charge of the Court, made in response to a question by the jury, be urged by plaintiff for error, "That the written contract would control, unless, after the execution, Allen agreed that defendant should be allowed the commission."

We agree with plaintiff that there was no evidence of any subsequent contract; and the law does not require that the stipulation, to be available to defendant, should be made after the written agreement was entered into. As we have seen, it could be set up as a defense and shown by testimony, though it was contemporaneous. (102)

But the jury, in rendering their verdict, have necessarily accepted the existence of the verbal stipulations insisted on by defendant; and the fact that his Honor annexed to it a qualification not required by the law to make it a valid defense is not error of which plaintiff can complain.

The response of the Court was more favorable to the plaintiff than he had a right to expect.

There is no reversible error in the record, and the judgment below is affirmed.

No Error.

Cited: Mudge v. Varner, 146 N.C. 149; Brown v. Hobbs, 147 N.C. 76;Basnight v. Jobbing, 148 N.C. 357; Woodson v. Beck, 151 N.C. 146, 148;Kernodle v. Williams, 153 N.C. 478, 485; Anderson v. Corporation,155 N.C. 134; Carson v. Ins. Co., 161 N.C. 447; Pierce v. Cobb, Ib., 304;Mfg. Co. v. Mfg. Co., Ib., 434; Wilson v. Scarboro, 163 N.C. 385; Richardsv. Hodges, 164 N.C. 188, 191; Buie v. Kennedy, Ib., 299, 300.