Cox v. . Hinshaw

DenNY, J. The plaintiff alleges that by reason of the failure of the defendants to perform the conditions in the contract executed by the parties, he desires to terminate the contract and cancel the deed, and has so notified the defendants and made demand that they vacate the premises and submit any differences or claims of dispute the plaintiff and defendants may have to arbitration, according to their agreement so to do; but the defendants have refused to vacate the premises or to submit their differences to arbitration. The defendants, on the other hand, deny any breach of the contract and allege that the contract does not contain a provision requiring the arbitration of the matters in dispute in this action. There is a provision in the contract that if the parties decide, for any cause, to terminate and cancel the deed and contract, in such event, the parties agree to arbitrate any differences that may arise between them. However, there is no provision in the contract for arbitration of any differences which might arise between the parties respecting the performance of the conditions contained therein. We think it is evident the differences which the parties agreed might be settled by arbitration, were those differences which might arise in a final settlement or accounting between the parties arising out of the *105 management of plaintiff's properties by defendants, as provided in the contract, in the event the parties mutually agreed to a termination of the contract and the cancellation of the deed. The plaintiff nor the defendants acting alone can effect a termination of the contract and a cancellation of the deed involved herein, thereby forcing a settlement of all differences arising’in connection therewith by arbitration. Consequently, the courts constitute the only forum in which the plaintiff may obtain relief for any breach of the conditions contained in the deed and contract. The jury in the trial below, having found that the defendants have not breached the contract, we must determine whether or not any prejudicial error was committed in the trial below. The defendants allege in their answer-that the deed and contract, dated 27 September, 1944, sets forth and contains the full and complete contract and agreement between the parties, with all the terms and conditions thereof, and that “all prior negotiations of the parties were and are merged in said written deed and contract — and that there are no existing terms of the agreement between the parties that are not set forth and contained in said deed and contract.” Notwithstanding these allegations made and verified by the defendants, the defendant, D. D. Hinshaw, was permitted, over objection by the plaintiff, to testify that certain provisions in the deed and contract were grossly unfair to the defendants and were not in accord with his understanding with the plaintiff prior to the preparation and execution of the agreement. He was permitted to point out and read to the jury the provisions to which he objected, and to testify as to what those provisions should have been, according to the proposals of the plaintiff made prior to the execution of the agreement. This evidence was inadmissible and prejudicial. Williams v. McLean, 220 N. C., 504, 17 S. E. (2d), 644; Stansbury on Evidence, Sec. 251, p. 503. It tends to show that the plaintiff did not act in good faith in connection with the preparation of the contract. The defendants in their pleadings do not raise an issue of fraud or seek to have the contract reformed, hence the exception of the plaintiff to the admission of this evidence will be sustained. The appellant also assigns as error the refusal of the court below to permit him to introduce evidence as to the condition in which he found his room the day before the trial, in his home occupied by the Hinshaws. There is no evidence disclosed on the record tending to show that the plaintiff has occupied the room at any time since he left there, 23 September, 1945, or that he has requested the defendants, in the meantime, to have the room in order and available for him. These assignments of error are without merit. "We deem it unnecessary to discuss the remaining assignments of error, since there must be a new trial, and it is so ordered. New trial.