Blackstad Mercantile Co. v. Parker

79 S.E. 606, 163 N.C. 275, 1913 N.C. LEXIS 165

• Court: Supreme Court of North Carolina
• Decided: October 15, 1913
• Status: Published

Opinion

Hoke, J.,

after stating the case: The reception of the evidence of the defendant Parker and the charge of the court in reference thereto are in accord with several recent decisions of the Court on the subject. Garrison v. Machine Co., 159 N. C., 285; Bowser v. Tarry, 156 N. C., 35; Pratt v. Chapin, 136 N. C., 350.

In Bowser’s case, supra, the Court, after approving the general rule that oral evidence will not be received to contradict or vary a written contract, made statement of the present position as follows: “While this position is unquestioned, it is also fully understood that although a written instrument purporting to be a definite contract has been signed and delivered, it may be shown by parol evidence that such delivery was on condition that the same was not to be operative as a contract until the happening of some contingent event, and this on the idea, not that a written contract could be contradicted or varied by parol, but that until the specified event occurred the instrument did not become a binding agreement between -the parties. It never in fact became tbeir contract. Tbe principle bas been applied witb us in several well considered decisions, as in Pratt v. Chaffin, 136 N. C., 350; Kelly v. Oliver, 113 N. C., 442; Penniman v. Alexander, 111 N. C., 427, and is now very generally recognized. Ware v. Allen, 128 U. S., 590; Wilson Powers, 131 Mass., 539; Rym v. Cambill, 88 E. C. L., 370; Clark on Contracts, p. 391; Lawson on Contracts (Amer. Ed.), p. 318, and, except in deeds conveying real estate, obtains, tbougb tbe instrument is under seal and delivery bas been to tbe other party. Blewitt v. Boorum, 142 N. Y., 357.” Tbe cases chiefly, relied upon by plaintiff, to wit, Machine Co. v. McClamrock, 152 N. C., 405; Medicine Co. v. Mizell, 148 N. C., 385, are not in conflict witb this position. Both of these cases proceed upon tbe theory that there was an existent written contract between tbe parties, and tbe question was whether its terms could be contradicted or varied by parol. In the present case, as stated, tbe question was whether there was or ever bad been any written contract between plaintiff and defendants, and tbe issue having been determined against plaintiff, under a correct charge, the judgment in defendants’ favor must be affirmed.

No error.