Etheridge and Another v. . Palin and Wife . , 72 N.C. 213 ( 1875 )

The rule of evidence, "parol testimony is not admissable [admissible] to add to a written contract," is so well settled and its importance in the administration of justice, both in courts of law and courts of equity, is so evident, that we are at a loss to see, aided by the argument of Mr. Smith, on what ground his Honor departed from it, and allowed the plaintiff, as a witness for himself, to swear that in addition to the written contract in regard to the fishery, seine, ropes, c., the defendants had made a guarantee as to the quantity and quality of the materials which had contracted to convey.

Upon the parol testimony, which his Honor admitted, the jury were justified in finding that the defendants did guarantee that the fishing materials were of better quality or more in quantity, than actually was the fact.

If this guaranty as to quantity or quality can, by parol testimony, be added to the written contract, that is decisive. The case turns upon the question of evidence. As to which, the argument of Mr. Smith yields, there can be no doubt unless the purpose of the action was to demand a reform of the written contract, on the ground of fraud, imposture or mistake, in regard to its execution, and the omission to insert a warranty as to quality or quantity. But there is no allegation of fraud, imposture or mistake, in regard to the execution of the written contract, or the omission to insert a warranty as to the quality or quantity of the fishing materials, so as to invoke the equity jurisdiction of the Court. On the contrary, the complaint avers that the contract of sale between the plaintiffs and the defendants, was reduced to writing, and a copy is appended as a part thereof, without any averment of fraud, imposture or mistake.

Mr. Smith then took the position, "when a party affirms as a fact, a matter which turns out not to be true, it makes no difference whether he knows it to be untrue or not." That is so; but it rests on the ground, that as a part of the contract, he undertakes and affirms that the matter is true, and this, as we have seen, is excluded by the terms of the written contract.

In short, it is settled, when the gravamen is on a false warranty, the plaintiff must prove a defect in the article, and also a warranty. When the gravamen is on a deceit, the plaintiff must prove a defect in the article, and also the scienter, that is, that the party knew of such defect. In our case, that is excluded by the finding of the jury. His Honor seems to have been led into error, by not adverting to this distinction; and the complaint is so drafted as to have lead to the impression, and to make it impossible to say, whether the gravamen is on a false warranty, or on a deceit.

There is error. This will be certified, c.

PER CURIAM. Venire de novo.