Thompson v. . Clapp

Clark, C. J. In May v. Getty, 140 N. C., 310, the Court held, citing many authorities, that parties to a written contract may by parol rescind, or by matters in pais abandon the same. In Rudisill v. Whitener, 149 N. C., 439, the Court held that the enforcement of specific performance, being an equitable matter, it is always admissible to show any good reason why specific performance should not be decreed. The matters here offered were competent for that purpose, and could have been shown by parol. It was also error to refuse to permit the plaintiff to answer the question : “Did you not agree that if the survey was not made within two weeks that the sale should be considered off?” In Holden v. Purefoy, 108 N. C., 167, the Court said: “It has long been settled that a parol waiver of a written contract under the statute of frauds, amounting to a complete abandonment, and clearly proved, will bar specific performance.” In Herren v. Rich, 95 N. C., 500, which was an action for specific performance on a contract very similar to this case, it was held that although the contract was under seal, parol evidence was permissible to show any good reason why the equitable relief prayed for should not be granted. There are many authorities to the same effect. . It is a principle of equity that parol testimony is permissible to rebut, but not to raise an action for specific performance. “While parol testi *249 mony is not admissible for the party seeking specific performance to vary or add to the terms of a written contract, it is always admissible in behalf of a defendant -resisting it.” Mayer v. Adrian, 77 N. C., 91, and cases there cited, and citations thereto in the Anno. Ed. The authorities to this effect are numerous. The evidence excluded should have been admitted. Its weight and the effect to be given to it was a matter for the jury. The motion of nonsuit was properly refused, but for the reasons above given there must be a New trial.