Tobacco Growers Association v. . Moss , 187 N.C. 421 ( 1924 )

Civil action to recover damages for an alleged breach of contract.

Upon denial of liability, and issue joined, there was a verdict and judgment for the defendant. Plaintiff appeals, assigning errors. The controversy, on trial, narrowed itself to the single question as to whether the defendant was a member of the plaintiff association, it being alleged and denied that he had executed the standard marketing agreement and thereby bound himself to deliver to the plaintiff all tobacco produced by him during the years from 1922 to 1926, both inclusive. Defendant admitted signing the agreement, but contended that this was done on condition, and that the contract was not to take effect except upon a contingency which never happened.

The general rule is that no verbal agreement between the parties to a written contract, made before or at the time of the execution of such contract, is admissible to vary its terms or to contradict its provisions. Overall Co. v. Hollister Co., 186 N.C. 208. But it is equally well established "that although a written instrument purporting to be a definite contract has been signed and delivered, it may be shown by parol evidence that such delivery was on condition that the same was not to be operative as a contract until the happening of some contingent event, and this on the idea not that a written contract could be contradicted or varied by parol, but until the specified event occurred the instrument did not become a binding agreement between the parties." Bowser v. Tarry, 156 N.C. p. 38. See, also, Building Co. v. Sanders, 185 N.C. 328, and cases there cited.

With respect to proving the alleged condition precedent, prior to the happening of which it was agreed the contract should not become effective or operative, his Honor in the beginning of his charge properly placed the burden of proof on the defendant — he having admitted signing the instrument — but in a subsequent portion of the charge, the burden of disproving this alleged collateral agreement was erroneously placed on the plaintiff. 13 C. J., 759; S. v. Regent Laundry Co. (Mo.), 190 S.W. 951;Muehlebach v. Missouri Railway Co. (Mo.), 148 S.W. 453; Dillon v.Anderson, 43 N.Y. 231; Appeal of Kenney (Pa.), 12 A. 589.

It is well settled that where there are conflicting instructions with respect to a material matter, a new trial must be granted, as the jury are not supposed to know which one of the two states the law correctly, and we cannot say they did not follow the erroneous instruction. S. v. Falkner,182 N.C. p. 799, and cases there cited.

For the error, as indicated, there must be a new trial, and it is so ordered.

New trial.