Faust v. Rohr

HoKE, J., after stating the case: After a full and impartial hearing, the jury have rendered a verdict on the issue in favor of defendant, and we find no good reason for disturbing the result. It was contended, first, that the original agreement, being in writing, could not be altered except by clear, strong, and convincing testimony; but while this principle is well recognized in proper instances, it does not apply in the present case. Unless in violation of some provision of law, it is recognized that parties to a written instrument may, by parol, rescind or by matter in pais abandon the same. May v. Getty, 140 N. C., 316, citing Holden v. Purefoy, 108 N. C., 630, and other cases. It is not proposed here to show that the written agreement was incorrectly expressed, but admitting that same was written exactly as agreed upon, the defendant undertook to show that the parties, by a subsequent agreement, had changed or done away with the first, and this they may do by the greater weight of the testimony. Again, it is insisted that the defense offered is in violation of the principle which forbids a party to contradict or alter a written instrument by contemporaneous oral stipulations; but the principle only prevails in cases where the parties have put the entire contract in writing, and not when same is partly in writing and partly in parol. Mfg. Co. v. Mfg. Co., 161 N. C., 430; Nicholson v. Reeves, 94 N. C., 559; Braswell v. Pope, 82 N. C., 57; Kerchner v. McRae, 80 N. C., 219. In such case parol evidence is received to establish the oral part of the agreement and to the extent that the same does not contradict that which is written. Walker v. Venters, 148 N. C., 388. In the present case the defendant contended and offered evidence tending to show that at the time the second contract was made it was also agreed that the first contract restraining defendant was annulled; that the same was not put in the written contract of partnership, as it was not considered necessary to do so. The one might have been an induce [362] ment or consideration for tbe other, but, being a part of the agreement which the parties did not undertake to put in writing, it may be properly established by parol. "While plaintiff, at the former hearing, showed a prima, facie right to relief, the facts having now been established against him and no reversible error being found, the judgment in defendant’s favor must be affirmed. No error.