Terry v. Danville, Mocksville & Southwestern Railroad

*241 Ashe, J. Waiving for the present the question whether the defendant’s objections were made in apt time, the}' having neglected, before the case was submitted to the jury under the charge of His Honor, to call his attention to any of the points presented in these exceptions, we are unable to discover any error in the instructions given, which entitles the defendant to a venire de novo. As to the first ground, of exception, that His Honor did' not instruct the jury as to the bearing of the written contract upon the issue, we are somewhat at a loss to- comprehend the import of the exception. If the defendant meant that His Honor should have instructed the jury that as thecontract was reduced to writing, parol evidence of any verbal contract between the parties was inadmissible, or that the written contract could not be explained, added to or contradicted by parol evidence, while we concur in the proposition if that is what is meant, we do not agree with the defendant in the former. There was in fact nothing for His-Honor to charge on this point. For the written contract was an agreement as to the work and its price on the road after the grade was lowered ; but there was a verbal contract made in July, and confirmed by subsequent promises on the part of defendant, for the work done before the grade was lowered, which was not included in the written contract, and for which the defendant promised to pay. When the agreement of parties is reduced to writing, it is a rule of evidence that parol testimony is not admissible to contradict, add to or explain it. For although there be no law requiring the agreement to be in writing, still the written memorial is the best evidence. But the rule has no application to this case, for' the writing is not a memorial of the entire agreement. It was only an execution of one part of the agreement, while the other part was left in parol. The contract made in July had reference to the entire work, hut that made and evidenced *242 by the writing referred only to the work to be done after the grade was lowered, and was only in part execution of the entire contract. Doughtry v. Boothe, 4 Jones, 87; Manning v. Jones, Busb., 368; Twidy v. Saunderson, 9 Ired., 5. See also Hawkins v. Lea, 8 Lea (Tenn.) 42, where it is held, “ When it is not intended that a written contract should state the whole agreement between the parties thereto, evidence of an independent verbal agreement is admissible.” This disposes of the first exception. The second exception, “ that His Honor failed to instruct the jury upon the legal propositions legitimately presented and insisted upon by the defendant,” is quite as difficult to be apprehended as the first. We find no legal proposition any where presented in the record by the defendant, unless their denial that they ever made any other agreement than that set out in the writing of August, and that they were only liable to pay for such work as was necessary to effect the change in the line of the Midland road, are regarded by them as legal propositions. If so, they are already disposed of by what we have had to say upon the first exception. _ But conceding that the written agreement had some bearing upon the issue upon which His Honor had omitted to instruct the jury, and the defendant had presented some legal proposition which His Honor had overlooked in giving his charge to the jury, there were no instructions asked of him by the defendant upon these points; and it is well settled that where a judge in his charge to ^the jury omits to instruct them on a particular point, it does not constitute error, unless he is requested to do so. State v. O'Neal, 7 Ired., 251; Brown v. Morris, 4 Dev. & Bat., 429; Hice v. Woodard, 12 Ired., 293. If the defendant deemed instructions upon these points material, they should have asked for instructions, and if re *243 fused, the question might have been brought to this court for review. Arey v. Stephenson, 12 Ired., 34. The principle announced in the above cited cases that an emission of a judge to charge upon a particular point is not error unless asked so to do, is still the law, notwithstanding the enactment of sub-division 3, section 412 of The Code, which is as follows: “ If there shall be error either in the refusal of the judge to grant a prayer for instructions or in granting a prayer, or in his instructions generally, the same shall be deemed excepted to without the filing of any formal objection.” Prior to this enactment, whenever an exception was taken upon a trial, it was required to be reduced to writing at the time, &c. Section 412, sub-division 2. The third sub-division of the section was intended to except from the requirement in the second sub-division that the exception must be taken in writing at the time, the cases, where the error is assigned in the court’s refusal to grant a prayer for instructions, or in granting such a prayer, or in the general instructions given to the jury. But it by no means dispenses with the rule, that instructions must be asked upon points omitted by the court in the charge, and ■ that it is no error to omit these unless asked to charge upon them. The third sub-division only provides that the error assigned in such cases need not be put in writing at the time, but may be taken at any time without writing, even in this court, as was held in Lawton v. Giles, 90 N. C., 374. The third and last ground of error assigned is as untenable as the others. That the court committed an error in leaving in his instructions the question of negligence to the jury, may be one of those errors that might be assigned under sub-division three. And taking it to be so, was it such an error as entitles the defendant to a venire de novo ? *244 The evidence in the case was that the unnecessary work done under the contract with the defendant was caused by their delay in lowering the grade of the road. If His Honor had charged the jury upon the question of negli-ligence, as a question of law, upon the evidence before him, he would have been bound to have told them that the unnecessary work done by the plaintiffs was caused by the negligence of the defendant. But he left that question to the jury, and they have decided it as the court must have instructed them, if it had expressed any opinion upon the point. And where a jury decide correctly a question o^ law improperly left to them by the court, the verdict cures the error of the court and it is no ground for a new trial. Glenn v. Railroad, 63 N. C., 510; Smith v. Shepard, 1 Dev., 461. Our conclusion is there is no error, and the judgment of the superior court of Rockingham is affirmed. No error. Affirmed.