Cumming v. . Barber

Davis, J., (after stating the case). The plaintiff testified in his own behalf, his evidence tending to show that the contract was as alleged by him. ■ The defendant was then examined as a witness, the tendency of his evidence being to show that the contract was as alleged by him. 1. In the course of the examination of this witness it was proposed to show by him “ that as a part of the agreement then made between the parties, but not reduced to writing, it was agreed that if Barber should take the option to ' replace the mill as agreed on, he was to have the insurance money for the purpose of doing so. This evidence was objected to by the plaintiff, but received by the Court and constitutes the first exception. It is a well established general rule, that if the parties reduce their entire contract or agreement to writing, whether *336 under seal or not, the Court will not hear parol evidence to vary or change it unless for fraud, mistake or the like; but if it appear that the entire agreement was not reduced to writing, or if the writing itself leaves it doubtful or uncertain as to what the agreement was, parol evidence is competent, not to contradict, but to show and make certain what was the real agreement of the parties, and, in such a case, what was meant is for the jury under proper instructions from the Court. In the case before us, it is conceded that if the defendant should elect to replace the property he was to have the insurance money — the only question is as to when? vVhether before, to be used in replacing it, as the defendant says, or after it should be replaced, as the plaintiff says, and upon this question the written instrument is silent. There is nothing said as to what disposition is to made of the insurance money if the defendant shall elect to replace the mill. We think there was no error in admitting the testimony. The ruling of the Court is sustained alike by “ the reason of the thing,” and by abundant authority. Johnston v. McRary, 5 Jones, 369; Twiedy v. Sanderson, 9 Ired., 5; Manning v. Jones, Busbee, 368; Sherrill v. Hagan, 92 N. C., 345, and the cases cited therein. 2. The defendant offered the deposition of R. D. Paddison to show that contemporaneously with the written agreement, and as a part of it not reduced to writing, the defendant and Monroe agreed that if the former should choose to replace the mill, he was to have the usé of the insurance money to do it with. This was admitted, under objection, by plaintiff, and is the 2d exception. This objection was properly overruled for the same reason as the first. 3. The defendant then offered in evidence the following letter written by Monroe, the assignor of the plaintiffs, to the defendant: *337 “ GlbnNAN, Ga., May 17th, 1883. Dear Sir: — Yours received; facts noted. I .am truly sorry to hear of the burning of the mill, and would advise you to re-build at once. I would put in a new engine and fit it up all right. You can use the insurance money of course. I have the policies, and will send them in a few clays. Yours truly, VV. T. MONROE.” It appears from the record that this letter was written be-.: fore the assignment by Monroe to the plaintiffs, which was in December, 1883, and it was clearly competent as tending to show that Monroe understood the agreement to be that the defendant, if he should re-build, was to have the insurance money. 5. For the same reason Monroe’s"letters of August 8th, 1883, and September 14,1883, in regard to the delay in getting the-insurance money, were admissible. These letters were also admissible as tending to show the cause of delay in collecting the insurance money. 6. The plaintiffs excepted to the 6th issue (by mistake number 5 in the case on appeal). That issue is: “ Was it agreed between Monroe and the defendant, before Monroe’s assignment to the plaintiffs, that defendant should have the use of the insurance money to replace the property with if he should take the option to do so ?” The ground of exception, as stated in the case, is “ because it presented no question of fact, but one of law only, which the Court must decide, the entire contract, as alleged by either or both parties, being in writing, and because it sought to set. up a contract subsequent to the contract declared on in modification of the latter, and amounting to a release of it, the plaintiff not having any notice of such defence, and such subsequent contract not having been set up or referred to in *338 the answer, and because, generally, in the pleading and evidence the issue should not be submitted.” This exception is founded upon the triple misapprehension — 1st, in supposing that the entire contract, as understood by both parties, (or either of them, as to that,) was in writing; 2d, that the written agreement itself determined, or could determine, whether the defendant would elect, in the contingency contemplated, to replace the property; and 3d, that it modified or released the original contract. It was of the very essence of the controversy, and it is impossible to see how the plaintiffs could reasonably be misled by it. 6. The case stated that “ on the argument of the admissi- ' bility of the letters and other evidence to show past agreement, defendant’s counsel contended that if the agreement between Monroe and Barber had been that if the mill should be replaced, the assured should also keep theinsurance money, it would have been a wager policy, and opposed to good morals and void; whereupon plaintiff's counsel admitted that it was not the intention of the parties, Monroe and Barber, that if Barber saw fit to replace the mill, and did so, that Monroe should keep the insurance money, but in that event their intention was that whenever Barber should replace the mill Monroe was to turn over to him the insurance money, and therefore the sixth (seventh) issue was submitted as follows : “ Was the agreement that the defendant should have the •insurance money after he should replace the mill and property, and did the said Monroe receive the money and use it, .and put it out of his power to comply with his agreement, .and did he mislead the defendant so as to delay the execution of his option?” The defendant had alleged, by way of defence and counterclaim for damages, among other things, that by reason of meglect and misrepresentations on the part of Monroe, there ■was a controversy with the insurance company and delay, *339 whereby he was deprived of the use of the insurance money in refitting the property for use, and that he thereby lost the benefit of his lease, by which he was damaged. This was denied by the replication. As bearing upon the 7th issue there was evidence tending to show that after the fire Monroe sent the insurance policy to one of the plaintiffs with “ instructions to hold it until Barber replaced the burned Mill and then to give it to him.” And Barber “ insisted that he was entitled to the policy or the proceed of it before he began to re-build,” and that he was ready and always had been to re-build as soon as the money was collected and paid to him. There was also evidence tending to show that Monroe had assigned the policy to Bacon & Co., of Savannah, Georgia. Ten issues were submitted to the jury, involving questions controverted by the parties. In response to two of these, the 2d and 3d, the jury had found as facts that the defendant offered “ to rebuild the mill and replace the property in as good condition as he had received it if Monroe, the plaintiff, would allow him the $1,500 insurance money,” and that they refused or placed it out of their power to do so, and in respect to the 6th issue, already cited, they responded “yes.” The responses to these issues were sufficient to determine the controversy in favor of the defendant, but it is insisted by the plaintiff that the 7th issue was improperly submitted because inconsistent with and contradictory of the 6th issue. The first part of the issue “ was the agreement that the defendant should have the insurance money after he should replace the mill and property,” is not raised by the complaint, answer and replication, but from the statement of the case seems to have been framed to meet a phase presented upon the argument by the counsel for the plaintiffs. The remaining part of it is fairly raised by the allegations and denials, and is substantially met by the 3d issue, in re *340 sponse to which the jury found that the plaintiffs refused or placed it out of their power to allow the defendant the use of the insurance money to replace the mill. So no part of the issue was needed to determine the controversy. Was it in any way prejudicial to the plaintiff? The first part of it, as responded to by the jury, seems but an affirmation of the admission of plaintiffs, made by counsel on the trial, and the second part of it a declaration, that taking the agreement as so admitted, Monroe had received the money, used it, and put it out of his power to comply with the agreement, and we are unable to see how the apparent conflict between the 6th and 7th issues can prejudice the plaintiff. There is no view in which the discrepancy in the issues and the finding of the jury can affect the result. This Court has several times held that the submissions of unnecessary or immaterial issues is not assignable as error, where it cannot be seen how the appellant is prejudiced thereby. Perry v. Jackson, 88 N. C., 103; McDonald v. Carson, 94 N. C., 497; Cuthbertson v. The Insurance Company, 96 N. C., 480. Upon a review of his Honor’s rulings, and the errors assigned in the record, we can see no error of which the plaintiffs can complain. Affirmed.