Smithfield Mills, Inc. v. . Stevens

BuogdbN, J. Tbe plaintiff purchased cotton through tbe defendants and offered evidence tending to prove that they bad agreed to put up margin in tbe event of a decline in price. Each sale was evidenced by a written agreement or sales contract tending to show tbe number of bales, grade, staple, etc. None of these sales agreements referred to margin or specified that tbe defendants should undertake to supply tbe same in tbe event of a decline in price. Tbe president of plaintiff testified that be notified tbe defendants about 12 December, that “they would bave to put up margin. "We bad been called on for margin by our New York brokers, and it was their job to put up margin with us to protect us. In consequence of this talk over tbe phone, Stevens and Ogburn came to Greenville to see us; I told them that we were drawing a draft on them for margin to protect us before they left for Greenville. Upon reaching Greenville, they asked us to accept a note for this margin. I told them that we would be willing to do this provided they would give us a note wbicb we could endorse over to tbe bank without recourse.” Tbe defendants objected to this testimony upon tbe theory that it tended to vary, alter or contradict a written agreement. Tbe evidence was competent. Tbe competency of parol evidence, upon states of fact involving written contracts was discussed in Miller v. Farmers Federation, 192 N. C., 144, 134 S. E., 407. Tbe Court said: “If tbe contract is not one wbicb tbe law requires to be in writing and a part thereof is oral, evidence of tbe oral portion is admissible, if it does not contradict or vary tbe writing, for tbe purpose of establishing tbe contract in its entirety. If a parol agreement and a written agreement, dealing with identical subject-matter, are totally inconsistent, tbe written agreement must stand.” See, also, Greene v. Bechtel, 193 N. C., 94, 136 S. E., 294. Tbe alleged agreement to put up margin in tbe event of a decline in price is not totally inconsistent with tbe sales agreements introduced in evidence. Consequently, tbe ruling of tbe referee and tbe trial judge was correct. Furthermore, tbe defendants offered evidence on direct examination with reference to tbe agreement for margin. Tbe defendant, Stevens, testified: “We never bad any agreement with Mr. Long or anyone representing him, that we would put up margin or keep up any margin with respect to this sale.” So that if tbe evidence Was in *385 competent in tbe first instance, the defendants waived the exception when they undertook to introduce evidence on direct examination about the same matter. The governing principle was written in Willis v. New Bern, 191 N. C., 507, 132 S. E., 286, in these words: “In other words, the rule is, that if evidence offered by one party is objected to by the adverse party and thereafter the objecting party elicits the same evidence, the benefit of the objection is lost,” etc. Complaint is also made that the issues were not submitted to a jury. However, in the judgment 'of the Superior Court is the following-declaration: “And it was stipulated by all parties that the presiding judge might review the evidence, consider the exceptions and render judgment out of term, to have the same effect as if rendered at term time.” Therefore, objections founded on the failure to submit issues to a jury are untenable. Affirmed.