Patton v. Sinclaire Lumber Co.

Walker, J., after stating the relevant facts as above: There are numerous exceptions stated in this case, but we will confine ourselves to only one of them, as we think that the court erred in its ruling and instruction covered by that exception. The contract is plainly and explicitly worded, and there is no doubt as to its meaning. The defendant was required to furnish a piling ground and sidetrack at Old Fort for stacking the lumber hauled by the plaintiff to that point and for convenience of transportation, but no particular place for the sidetrack and piling ground is specified, and nothing whatever is said in the contract about the tramroad. So far as appears from it, the plaintiff was to do the hauling of the lumber in his own way, and the defendant was in no way liable for his failure or inability to haul in any particular way or by any special mode of conveyance. If the plaintiff contemplated or intended, when he made the contract, to purchase the tramroad, so that he could haul his timber while it was green and thereby get more money for it, it is very sure that there is nothing in the contract which required the defendant to so locate the sidetrack or piling ground at Old Fort as to adjust them to this new method of hauling from the woods to Old Fort, or, in other words, so to place them as that they would be near the terminal of the tramroad or more accessible therefrom. There was nothing of the kind in the contract, and no liability arose out of a failure to do any such thing. To add such a stipulation to the writing, directly or indirectly, would be to vary it, and to make a contract for the parties which they have not made for themselves. If the plaintiff wished to impose a duty of that kind upon the defendant, he should have had it so stated in the contract. It was easy to do so, even if plaintiff had not then acquired ownership of the tramroad, or taken steps to do so. It will not do for one of the parties to allege that something was contemplated other than what we find in the writing itself, which is the final expression of their agreement. All things contemplated or intended by the parties, and all of their previous negotiations, are conclusively presumed, in law, to have been merged in the contract and to be expressed in the written memorial of it. *108 “Where a contract is wholly in writing, and the intention of the framers is, by law, to be collected from the document itself, then the entire construction of the contract — that is, the ascertainment of the intention of the parties as well as the effect of that intention, is a pure question of law, and the whole office of the jury is to pass on the existence of the alleged written agreement. Where the contract is by parol the terms of the agreement are, of course, a matter of fact, and if these terms be obscure or equivocal, or are susceptible of explanation from extrinsic evidence, it is for the jury to find also the meaning of the terms employed; but -the effect of a parol agreement, when its terms are given and their meaning fixed, is as much a question of law as the construction of a written instrument.” Young v. Jeffries, 20 N. C., 357, op. by Gaston, J., cited and approved in Wilson v. Cotton Mills, 140 N. C., 55; Mining Co. v. Smelting Co., 122 N. C., 542, and in Spragins v. White, 108 N. C., 449, where the principle is fully discussed. It is not what was contemplated, or what may have been intended, but what they both agreed to do, as evidenced by the writing. Justice Shepherd said, in Moffitt v. Maness, 102 N. C., 457, 459 : “There is, we fear, too great a tendency 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 contract, and it is thought that the courts, in their anxiety to avoid probable injustice in particular cases, are gradually construing away a principle which has always been considered one of the greatest barriers against fraud and perjury.” This Court in that case quotes and approves the following from Benwich v. Benwich, 3 Harris (Pa.), 66 : “Were the door opened still wider for the admission of all the loose dicta of the parties, running, it might be, as in this instance, through a long course of years, the flood of evil would become so great as to sweep before it every barrier of confidence and safety which human foreT thought, springing from experience, is so sedulous to raise against the' treachery of memory and the falsehood of men. To avoid, therefore, what would really be a social calamity, it is recognized as a settled maxim that oral evidence of an agreement, entertained before its execution, shall not be heard to vary or materially affect it. . . . If any dicta, or even decisions in hostility to this axiom, are to be found, they must be ascribed to the strong desire we are all apt to be swayed by to defeat some strongly suspected fraud in the particular case. But these occasional aberrations but lead to the more emphatic reannunciation of a principle found to be essential to the maintenance of that certainty in human dealings, without which commerce must degenerate into chicanery, and trade become another name for trick.” And speaking of the higher dignity and greater certainty of written evidence, Chief Justice Taylor said, in Smith v. Williams, 5 N. C., 426: “The writers *109 on the law of evidence bave accordingly, in arranging the degrees of proof, placed written evidence of every kind bigber in the scale of probability tban unwritten, and, notwithstanding the splendid eloquence of Cicero to the contrary, in bis declamation for the poet Arebias, the sages of our law bave said that the fallibility of human memory weakens the effect of that testimony, which the most upright mind, awfully impressed with the solemnity of an oath, may be disposed to give. Time wears away the distinct image and clear impression of facts, and leaves in the mind uncertain opinions, imperfect notions and vague surmises.” It is of importance to bear in mind that in those cases, and in all of them, we believe, the attempt was to show orally, not as here, a mere contemplation or intention, but a distinct agreement, or stipulation, concerning a matter not expressed in the written contract. Tbe language of the Court in Knitting Mills v. Guaranty Co., 137 N. C., 565-569, is: “In this contention between the parties we are led to believe that the advantage is decidedly with the defendant. He is relying upon the last written memorial of the contract, which in law is taken to express all that the parties intended to put in it, and which merges in itself all prior or contemporaneous declarations or agreements. Tbe legal effect of a final instrument which defines and declares the intentions and rights of the parties cannot be modified or corrected by proof of any preliminary negotiations or agreement, nor is it permissible to show bow the parties understood the transaction in order to explain or qualify what is in the final writing, in the absence of an allegation of fraud or mistake or unless the terms of the instrument itself are ambiguous and require explanation,” citing numerous cases. The charge of the court in this ease ignored the express terms of the contract, and directed the jury to consider, upon the questions of breach and damage, a matter entirely extraneous to it, which is not permissible under the well settled rule which we have stated, and the defendant was clearly prejudiced throughout by this error. It extends to the alleged breach of the contract by the defendant, and also to that of the plaintiff set up in its counterclaim. The plaintiff alleged that the defendant bad broken its contract, and that be bad abandoned the work because of this breach by the defendant; while the defendant alleged that plaintiff abandoned the work without just or legal cause or excuse, and the instruction touched both phases. The instruction was so vital, and so injurious to the defendant, that we would not, in any view, exercise our discretion by restricting the new trial to any one or more of the issues. Nathan v. R. R., 118 N. C., 1066; Hawk v. Lumber Co., 149 N. C., 10. We therefore conclude that there was error, and the case should be submitted to another jury. New trial.