Garrison v. Case Threshing MacHine Co.

Walker, J., after stating the case: The defendant tendered certain issues, and, without setting them out, it is sufficient to say that they did not embrace the questions raised by the pleadings, and were, therefore, properly rejected by the court. Those adopted by the court were sufficient for the defendant to present its contentions and to develop its case, and this is all that could be asked. The form of the issues are within the discretion of the judge, provided they are sufficient to determine the rights of the parties and to support the judgment. Roberts v. Baldwin, 155 N. C., 276; Clark v. Guano Co., 144 N. C., 71; Kimberly v. Howland, 143 N. C., 398; Fields v. Bynum, 156 N. C., 413. We also think that the testimony of the plaintiffs, as to the transactions and dealings between them and defendant’s agent, was competent. It does not fall within the rule excluding parol evidence of the contents of a written instrument and requiring the production of the paper. This is not an action for the breach of a written contract, but the theory upon which it rests is that the instrument was never delivered, and this is the principal question in the ease. If the contract had been executed, or the writing delivered to. the agents, with the understanding that it should presently take effect, the plaintiff could not, by parol evidence, contradict or vary its terms. Moffitt *289 v. Maness, 102 N. C., 457. But this is not what was proposed to be done, but, on the contrary, the purpose was to show that the contract never had any existence in fact. The case is governed, in all its features, by Pratt v. Chaffin, 136 N. C., 350, and Bowser v. Tarry, 156 N. C., 35. In the case last cited Justice Hoke, quoting from Walker v. Venters, 148 N. C., 388, and commenting upon the same and other cases, said: “Even when a contemporaneous oral stipulation would be otherwise received, because it too was a part of the contract, this will not be allowed when it contradicts the portion of the agreement which is reduced to writing. This is well stated by the present Chief Justice in Walker v. Venters, as follows: ‘It is true that a contract may be partly in writing and partly oral (except when forbidden by the statute of frauds), and in such case the oral part of the agreement may be shown; but this is subject to the well-established rule that a contemporaneous agreement shall not contradict that which is written. The written word abides.’ While this position is unquestioned, it is also fully understood 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 that until the specified event occurred the instrument did not become a binding agreement between the parties. It never in fact became their contract. The principle has been applied with us in several well-considered decisions, as in Pratt v. Chaffin, 136 N. C., 350; Kelly v. Oliver, 113 N. C., 442; Penniman v. Alexander, 111 N. C., 427, and is now very generally recognized.” And in Ware v. Allen, 128 U. S., 590, the Court held that “Parol evidence is admissible in an action between the parties to show that a written instrument executed and delivered by the party obligor to the party obligee absolute on its face was conditional and not intended to take effect until another event should take place.” It is said in Anson on Contracts (Am. Ed.), p. 318: “The parties to a written contract may agree *290 that until the happening of a condition, which is not- put in writing, the contract is to remain inoperative.” The principle is a familiar one and is directly applicable to the facts of this case. It has been well stated, in its application to similar facts, by Judge Devens in Wilson v. Powers, 131 Mass., 539, as follows: “The manual delivery of an instrument may always be proved to have been on a condition which has not been fulfilled, in order to void its effect. This is not to show any modification or alteration of the instrument, but that it never became operative and that its obligation never commenced.” And also by Crompton, J., in Pym v. Campbell, 6 Ed. and Bl., 88, thus: “If the parties had come to an agreement, though subject to a condition not shown in the agreement, they could not show the condition, because the agreement on the face of the writing would have been absolute and could not be varied; but the finding of the jury is that this paper was signed on the terms that it was to be an agreement if Abernathie approved of the invention, not otherwise. • I know of no rule of law to estop parties from showing that a paper purporting to be a signed agreement was in fact signed by mistake or that it was signed Ion the terms that it should not be an agreement till money was paid or something else done.” Those two cases were cited with approval in Pratt v. Chaffin, supra. See also 1 Elliott on Ev:, sec. 575; Gazzam v. Insurance Co., 155 N. C., 330. As practically all of the defendant’s exceptions are based upon a misapprehension of this rule, as the one controlling the case, they cannot be sustained. We do not think that the.trial judge expressed any opinion upon the facts. He was merely stating the contentions of the respective parties in that part of the charge to which this exception was taken. As the defendant passed the papers to an innocent purchaser for value, and plaintiff cannot recover the land, they- are entitled to be compensated by the defendant for the loss they have sustained by its wrongful act, which, in this case, is the value of the land. Sprinkle v. Wellborn, 140 N. C., 163; Hale on Damages, 72. *291 It is unnecessary to .discuss the exceptions relating to tbe fourth issue, as, without this issue, the verdict is sufficient to support the judgment (Sprinkle v. Wellborn, supra), though we think they are without merit, as there was some evidence of the fraud. No error.