Pratt v. Chaffin.

CoNNOR, J., after stating the facts. The exception of the plaintiffs is based upon the theory that the testimony in regard to the agreement, made prior to the signing of the order by defendant Chaffin, tended to contradict or add to the terms of the contract. This is a misconception of the purpose and effect of the testimony. The defendants admitted that the order for the goods was signed as alleged and that it was delivered to plaintiff’s agent, but say that at the time of signing and delivering there was an express agreement that it was not of any binding force or validity unless satisfactory to Hill; that by virtue'of this agreement the contract was incomplete, and that the assent of Hill was a condition precedent to the completion of the contract. In this consists the distinction between this case and those cited in the excellent *352 brief of plaintiff’s counsel. The distinction is clearly pointed out in several cases to be found in the Reports. Shepherd, C. J., in Kelly v. Olliver, 113 N. C. 442, speaking of testimony of tbis character, says: “This does not contradict the terms of the writing, but amounts to a collateral agreement postponing its legal operation until the happening of the contingency.” Judge Miller, in Ware v. Allen, 128 U. S., 590, thus states the principle upon which such testimony is admissible: “We are of the opinion that this evidence shows that the contract upon which this suit is brought never went into effect, that the condition upon which it was to become operative never occurred, and that it is not a question of contradicting or varying a written instrument by parol testimony, but that it is one of that class of cases well recognized in the law by which an instrument, whether delivered to a third person as an escrow or to the obligees in it, is made to depend as to its going into operation upon events to occur or to be ascertained thereafter.” Devens, J., in Wilson v. Powers, 131 Mass., 539, says: “The manual delivery of an instrument may always be proved to have been on a condition which has not been fulfilled, in order to avoid its effect. This is not to show any modification or alteration of the instrument, but that it never became operative and that its obligation never commenced.” Crompton, J., in Pym v. Campbell, 6 E. & B., 88, says: “If the parties had come to an agreement, though subject to a condition not shown in the agreement, they could not show the condition because the agreement on the face of the writing would have been absolute and could not be varied, but the finding of the jury is that this paper was signed on the terms that it was to be an agreement if Abernathie approved of the invention, not otherwise. I know of no rule of law to estop parties from. showing that a paper purporting to be *353 a signed agreement was in fact signed by mistake, or tbat it was signed on tbe terms that it should not be an agreement till money was paid or something else done.” Elliott on Ev., Vol. I, sec. 575. These authorities amply sustain his Honor’s ruling admitting the testimony. The contention made by the plaintiffs that, because of the statement in the order, there was no understanding with the salesman, except as printed or written on the order, the defendants are prevented from showing the agreement, assumes the very question in controversy whether there was any valid, binding contract. The jury having found in accordance with the defendants’ uncontradicted testimony, there was no contract to be varied or added to. It was the misfortune of the plaintiffs that their salesman sent them the order immediately and without informing them of the agreement which he had made with the defendants. This is one of a number of cases before us at this term in which parties have signed long and complicated printed contracts for the purchase of goods, and, in various forms, set up defenses based upon parol agreements with salesmen or agents. It would seem that men of intelligence, both vendors and vendees, would have learned the necessity of reading and understanding the terms and provisions of such contracts before signing and accepting them. We have adhered to the well-settled principle that in the absence of allegation and proof of fraud or mutual mistake, the solemn contracts of men evidenced by their signature to printed or written agreements cannot be varied or changed by parol evidence. Machine Co. v. Hill, 136 N. C., 128, and Register Co. v. Hill, 136 N. C., 272. This case comes clearly within the distinction pointed out. The instructions asked by the plaintiffs could not have been given. They assumed that a contract had been made and that the defendants were endeavoring to rescind it by coun *354 'termanding the order. The question of the right to countermand does not arise for the reasons given. There is no error, and the judgment must be Affirmed.