Dr. Shoop Medicine Co. v. J. A. Mizell & Co.

Walker, J. Tbe evidence as to tbe parol agreement at tbe time tbe written contract was executed was incompetent. It contradicted tbe plain terms of tbe written instrument, and it is not permissible to dp this, even where there is a contemporaneous oral stipulation which was not reduced to writing, although intended to be a part of the contract. Tbe oral must not conflict with tbe written part of tbe contract. Tbe subject is fully discussed by us in Basnight v. Jobbing Co., ante, 350, where the authorities will be found. See, also, Walicer v. Venters, next succeeding. It would be useless to point out in what cases oral evidence is competent to fill out a contract, a part of which is in writing, or to explain tbe contract when ambiguous. This case is governed by tbe general rule that such evidence will not be received where it contradicts or varies a written contract. It is provided in the order that it is not subject to countermand and that there is ni> agreement, verbal or otherwise, affecting the terms of tbe order, which is the contract, except what is specified therein. There is no doubt as to tbe true meaning of those words. Tbe jury, upon tbe evidence which was admitted by the court, changed that meaning radically and substituted for the contract, as written by the parties, another and different one. The defendant testified that he did not read tbe contract, but signed it, supposing that it was.drawn according to the oral understanding. If he did not read it, the fault was his own. He had tbe opportunity to do so, and bis failure to .avail himself of it was due solely to bis own neglect. He must suffer tbe consequences of this omission to do what any *387 prudent man would have done under the circumstances. There is no suggestion that he was prevented fi;om reading the paper or was put off his guard by any fraud, artifice; deception or other wrongful act of the agent. Dellinger v. Gillespie, 118 N. C., 737; Floars v. Insurance Co., 144 N. C., at p. 241. Those cases decide that he is bound by the written instrument. ■ But the evidence was incompetent on another ground: It was offered and admitted to show an oral agreement with the agent, which was contrary to the express statement in the contract that there was no such oral agreement. If the agent had the authority to make the oral agreement, the burden was upon the defendant to show it, even if evidence of such agreement was otherwise competent. Machine Co. v. Hill, 136 N. C., 128. There was no evidence of such authority introduced, and if this stipulation can be regarded as one forbidding the agent to make any agreement contrary to what is expressed in the contract, and therefore, one which could be waived, the principal would not be bound by what the agent did. But it is positively stated in the order, as we have said, that there is no agreement, verbal or otherwise, affecting the terms of the order, except the one expressed therein, and to this the defendant freely assented by signing the written instrument. The well-settled rule of the law forbids him now to show the contrary by oral testimony. It was therefore improper to admit-the evidence to show that the goods were to be returned, at his option, if not sold within ninety days, as this clearly contradicts the express terms of the contract. Moffitt v. Maness, 102 N. C., 457. New Trial.