Ray v. . Blackwell

Smith, C. J. (after stating the facts). It is a rule too firmly established in the law of evidence to need a reference to authority in its support, that parol evidence will not be heard to contradict, add to, take from or in any way vary the terms of a contract put in writing, and all contemporary declarations and understandings are incompetent for such purpose, for the reason that the parties, when they reduce their contract to writing, are presumed to have inserted in it all the provisions by which they intend to be bound, 1 Qreenleaf Fro., §76. Etheridge v. Palin, 72 N. C., 213. The cases cited do not contravene this rule, and rest upon the idea that thé writing does not contain the contract, but is in part execution of it. Such is the ruling in Twidy v. Sanderson, 9 *13 Ired., 5; Daughtry v. Boothe, 4 Jones, 87; Manning v. Jones, Busb., 368; Perry v. Hill, 68 N. C., 417; Woodfin v. Sluder, Phillips, 200; Kerchner v. McRae, 80 N. C., 219; Braswell v. Pope, 82 N. C., 57; Terry v. Railroad, 91 N. C., 236; Sherrill v. Hagan, 92 N. C., 345; Willis v. White, 73 N. C., 484. The case most relied on and pressed in support of the admissibility of the testimony, is that of Kerchner v. McRae, supra, the facts of which, summarily stated, are these: John McCallum died indebted to Charles McRae and Henry McCallum who were partners, doing business in the individual name of the former. The executors of the deceased gave their bond for the amount due, and at the same time it was agreed that the proceeds of certain cotton deposited with the firm by the testator in his life time, when sold, should be applied in payment of the bond, and credited thereon. The bond passed into the hands of the plaintiffs, subject to all the equities attaching to it when held by the obligees, without endorsement of the agreed credit. This evidence was held competent by the Court, and properly so, since it did not in any way modify the terms of the bond, but provided a mode of payment, which the holders were to carry into effect and neglected to do. Out of this contemporary contract springs the defendants’ equity to have their testator’s assets applied to a debt which they bad assumed, and in their exoneration pro tanto, and which was enforced. Somewhat similar is the ruling in Willis v. White, above cited. The true ground upon which such evidence is received, is that it shows the contract of the other party to the agreement, or the part not committed nor intended to be committed to writing, and consequently not constituting the entire agreement. We do not intend to say, that if the excluded portion of the full parol agreement for renting not contained in the writing, has been left out through fraud or mutual mistalce or accident, there is not an equitable power residing in the Court for its reformation, so that it shall effectuate the common understanding, when the pleadings are framed in such a way as to admit the defence. *14 Undoubtedly this may be done, but this is not the case presented to us, and our ruling rests upon a well established rule of evidence prevailing as well in equity as at law. Howell v. Hooks, 2 Dev. Eq., 258. There is error. The verdict must be set aside and a new trial had. Let this be certified. Error. Reversed.