Johnson v. East Carolina Land & Railway Co. , 116 N.C. 926 ( 1895 )

Faircloth, C. J.:

When an agreement is reduced to writing, the rule of evidence that parol testimony is not admissible to contradict, add to, or explain it, is too well established to require further argument, and whether the law requires it to be in writing or not, still the written memorial is the surest evidence.

The deed of plaintiff to the defendant is uncertain as to the amount of land on the home plantation conveyed to defendant, but it allows that matter to be made certain by authorizing defendant to take an amount of land sufficient for the use of its roadway, ditches, &e. This sufficiency can not be determined by the terms of the deed and could, if the parties were not agreed, only be done by evidence aliunde.

The plaintiff offers to prove that at .the time the deed was made with this indefinite provision, it was agreed by parol that, in addition to the main consideration expressed, the defendant should pay for the excess over twenty feet, whenever so used. This is denied, but found to be so by the jury upon the testimony of witnesses. We cannot see that this evidence violates the rule of evidence above referred to. It is in furtherance of. an agreement, not expressed in the deed, but arising naturally out of the uncertain feature of the deed already pointed out and as a part of the main transaction.

The witness Foy says he was assisting the defendant gratuitously, and when it was decided tbat tbe road was to come, he went to plaintiff’s agent, Rhem, to get the right of way and insisted on it with more than twenty feet, handed him the deed to be signed by him and the plaintiff, and saw the plaintiff and told her she must give the road all the land necessary through the home plantation, that he had the deed prepared and she signed it and handed it to him, that he had it recorded and sent it to the defendant at Wilmington, and says he did .not agree to pay anything for the excess, and that he had no power to agree to pay the plaintiff one cent, and was afterwards a director in the defendant company. Here was certainly a good deal of active and gratuitous wort for some one. The defendant has accepted this deed and by building its road on the home plantation has availed itself of the contract, whatever it was, and of the benefit thereof, and cannot now be heard to say that Foy was not its agent. The right or power to purchase implies the right or power to pay or to agree to pay. We see no error and the judgment is affirmed.

Affirmed.