Browning v. . Berry

Avery, J.- -after stating the facts: Where the plaintiff declares, upon a verbal contract, void under the statute of *235 frauds, and the defendant either denies that he made the contract, or sets up another and a different agreement, or admits the oral agreement and pleads specially the statute, testimony offered to prove the parol contract is incompetent, and should be excluded, on objection. Holler v. Richards, 102 N. C., 545; Morrison v. Baker, 81 N. C., 76; Bonham, v. Craig, 80 N. C., 224. In the case last cited, Chief Justice Smith lays down the rule, substantially, that an absolute denial in an answer to the allegation in the complaint that embodies the agreement sued on, draws in question and puts at issue not only its validity, but its legal existence. The plaintiff’s counsel contends, however, that the testimony offered to establish the contract was admitted without exception, and the failure to object to its introduction places the defendant in the same position that he would have occupied had he admitted the making, as well as the binding force of the parol agreement sued on. Counsel insisted, also, that though the lease for five years was void, under the statute, the contract would be enforced as a lease for one year, becoming a tenancy from year to year, in case of holding over, after January, 1887, and the defendants could be compelled to perform the mutual stipulations for repairs on their part. If we admit, for the sake of argument only, that this position is tenable, we encounter immediately the insuperable barrier to the plaintiff’s recovery on the supposed prima facie case on which he rested, that there is a variance between the allegation and the proof. The plaintiff testified, reiterating the statement more than once, that the parol agreement, on the part of the defendants was, in terms, an unqualified lease of the premises for five years, and not for one year, with the privilege of five, as alleged in the complaint. So, if the contract alleged is not that proven, it was his Honor’s duty to tell the jury that the plaintiff could not prove a cause of action essentially different from *236 that declared upon and ask a verdict upon such evidence, even conceding the correctness of the plaintiff’s legal proposition. If the plaintiff had amended the complaint here by leave of the Court, he must have made it conform to the evidence, by alleging that he entered under a void verbal lease for five years. If the defendants allow this denial of the old contract to stand as their defence to the new cause of action, it cannot be maintained, or, if they do not choose to deny the parol agreement and enter the plea of the statute, it would put an end to the action. It is unnecessary to pass upon the other question discussed by counsel. There is no error. The judgment must be affirmed. Affirmed.