Woodson v. Beck

Manning, J.

Tbe only question presented by this appeal is tbe correctness of bis Honoi*’s ruling, excluding tbe following testimony of tbe defendant: “Plaintiff offered to insure my life. I told bim I wanted no insurance. He said, ‘You have an Equitable ^policy tbat I can trade you for to your' advantage.’ Asked to see it. I showed it. He saw it was payable to my wife. He said he’d write tbe company, and later said be bad done so. My policy for $1,000 was a twenty-payment policy, on which I bad paid nineteen payments. He proposed to get me a new policy for $2,000, and tbat my old policy would be accepted in payment of all premiums to be due on it, except $9 per year. In other words, tbe old $1,000 policy was to be exchanged for a new $2,000 policy and I was to pay $9 a year additional. I agreed to this, and was examined, signed tbe application and tbe due bill, which I understood was an order binding me to surrender tbe old policy. Nothing was ever said about my paying $92.92 per year for a new $2,000 policy. I never agreed to do so. Three weeks later, when be brought tbe policy for $2,000, which calls for $92.92 per year from me for life, be refused to accept tbe old policy, but said I must arrange tbe surrender of it to tbe company, and be demanded of me $92.92 and tbat I take tbe new policy. This I refused. Tbe policy be offered me is tbe same as now shown me, -and tbe application I signed is, to tbe best of my knowledge, copied correctly in it.”

*146 This testimony was excluded by bis Honor, there being no allegation of fraud or mistake, because it contravenes the well-settled and elementary rule of evidence that it is not permissible to add to, vary or contradict tbe terms of a written agreement by a contemporaneous parol agreement, even where no statutory enactment requires the agreement to be in writing. The more recent cases in which this rule is discussed are Walker v. Cooper, 150 N. C., 129; Basnight v. Jobbing Co., 148 N. C., 350; Walker v. Venters, 148 N. C., 388; Medicine Co. v. Mizell, 148 N. C., 384; Cobb v. Clegg, 137 N. C., 153; Evans v. Freeman, 142 N. C., 61. In these cases will be found cited the earlier cases. It is contended, however, by the defendant, that the evidence does not contravene this rule, but was admissible under the rulings of this Court in the cases of Typewriter Co. v. Hardware Co., 143 N. C., 97, and Evans v. Freeman, 142 N. C., 61, and the cases therein cited. The principle, reaffirmed in these cases, is that “where the contract does not fall within the statute of frauds the parties may put their agreement in writing or contract orally, or put some of the terms in writing and arrange others orally. In the latter case, although that which is written cannot be aided by parol evidence, yet the terms arranged orally may be proved by parol, in which case they supplement the writing, and the whole constitutes one entire contract.” Clark on Contracts (2d Ed.), p. 85.

The‘limitations, however, upon the application of this principle, recognized in all the eases in which this principle has been applied, is that the oral collateral agreement, or that part of the agreement not reduced to writing, cannot be permitted to vary, add to or contradict the written agreement, “but, leaving it in full force, as it has been expressed by the parties in the writing, the other part of the contract is permitted to be shown in order to round it out and present" it in its completeness, the same as if all of it.had been committed to writing.” Evans v. Freeman, supra.

The manifest purpose and effect of the evidence offered by the defendant is to show, by parol, a contract entirely variant from and inconsistent with the written agreement. The defendant denies that what the writing contains was, in fact, any part of his agreement with plaintiff, though admitting, by his admission of signature to it, its obligatory force in law. He says the sum of $92.92 was not mentioned at all; that he thought the due bill was an order for the surrender of the old policy; that the only agreement he made was to buy an ordinary life policy for $2,000, as was tendered him, and to pay for the entire contract, to run for his life, by surrendering his twenty-payment policy of *147 $1,000 and by tbe payment of $9 per year. There is no part of tbe written contract tbat is not varied and contradicted by tbis parol agreement. For tbe contract contained in tbe writing tbe defendant proposed to substitute, by parol, an entirely different contract. In our opinion, tbe proposed testimony was not competent or admissible under tbe decision of tbis Court in any case. In Typewriter Co. v. Hardware Co., supra, tbe defendant proposed to prove as its defense to an action upon its written promise to pay for a' typewriter tbat at tbe time tbe agent of defendant agreed to allow it a credit of $40 as commissions on four machines sold by him. Tbe Court held tbe evidence admissible, because it did not conflict with tbe written part of tbe agreement.

In Evans v. Freeman, supra, tbe defendant offered to prove by parol, as bis defense to bis note sued upon, tbat it was agreed tbat it should be paid out of tbe proceeds of tbe sale of tbe patent right for which it was given. Tbis Court held tbe evidence competent, as not in conflict with tbe written part of tbe agreement,, bolding “tbat it is competent to show by parol evidence a collateral agreement as to bow an instrument for tbe payment of money should in fact be paid, though tbe instrument is necessarily in writing and tbe promise it contains is to pay so many dollars.”

In Braswell v. Pope, 82 N. C., 57, the plaintiff was allowed to show, as a defense to tbe action upon bis notes, that it was agreed by parol tbat tbe defendant was to accept, as payment of bis notes, an assignment of a judgment secured by a mortgage-on another. In Kerchner v. McRae, 80 N. C., 219, tbe parol agreement, held admissible, showed tbat plaintiff was to credit on defendant’s note tbe value, $3,000, of certain cotton belonging to defendant in tbe bands of plaintiff for sale. Other cases will be found decided by tbis Court “in which tbe application of tbe same principle has been made to various combinations of facts, all tending, though, to tbe same general conclusion tbat such evidence is competent where it does not conflict with tbe written part of tbe agreement and tends to supply its complement or to prove some collateral agreement made at tbe same time.” In all these eases, in which tbe application of tbis principle has been made, tbe parol agreement was limited in its effect to tbe particular obligation sued upon; but, in tbis,‘this is neither tbe effect nor tbe purport of tbe proposed evidence, nor would the defendant be content with such a limitation. He proposes to discharge, not only the due bill to tbe plaintiff, but to discharge the contract with tbe assurance society issuing the policy, by writing into tbat contract tbe parol agreement made with tbe *148 plaintiff. The parol evidence not only does not tend to supply the complement of the written agreement or tend to prove some collateral agreement made at the same time as a part of the written agreement and not inconsistent with it, but to prove a contract entirely variant from and inconsistent with it. Writing the parol agreement into the written, no part of the written agreement would be left. We do not think this principle has ever been extended so far, and, mindful of the warning of this Court in Moffitt v. Maness, 102 N. C., 457, repeated in Cobb v. Clegg, 137 N. C., 153, we are unwilling further to relax the well-settled rules of evidence against the admissibility of parol testimony to contradict, vary or add to the terms of a written agreement. We do not intend by what we have said in this decision to preclude the defendant, if he shall be so advised, from bringing his action against the assurance society for a reformation of his contract of insurance upon proper allegation and proof of mistake. After a careful review of the decided cases, we are of the opinion that the evidence was inadmissible and his Honor committed no error in excluding it. The judgment is therefore

Affirmed.