Cox v. Phillips

Court of Appeals of North Carolina

Cox v. Phillips

168 S.E.2d 485, 5 N.C. App. 490, 1969 N.C. App. LEXIS 1373

CourtCourt of Appeals of North Carolina

DecidedJuly 23, 1969

DocketNo. 693SC278

StatusPublished

This text of 168 S.E.2d 485 (Cox v. Phillips) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cox v. Phillips, 168 S.E.2d 485, 5 N.C. App. 490, 1969 N.C. App. LEXIS 1373 (N.C. Ct. App. 1969).

Pincite

Opinion

Bhitt, J.

Plaintiffs contend that the court committed error in permitting the defendant to testify that neither the oral conversations nor the subsequent written contract, as signed by the defendant, had included a brick wall on the outside of the extended carport.

Plaintiffs’ former home on the same lot had burned and the parties contemplated building a new house very similar to the one that had burned. The burned house had a single-car open carport. The typed contract incorporated a handwritten list of specifications of materials, alterations and the like. Item No. 15 stated: “Add 13' [492]*492on width of carport.” On the same line of the lined paper, in slightly different writing and crowded to the edge of the paper, was the following: “w/brick wall.” As the import of the defendant’s testimony was that the signed agreement had not included bricking up the end of the carport, the contract terms were ambiguous. Defendant was seeking to testify only to the terms of the agreement signed by him. He did not seek to vary the agreement; the parol evidence rule is not involved. Stansbury, N.C. Evidence 2d, § 260, p. 625, § 229, p. 581. See also Bowden v. Bowden, 264 N.C. 296, 141 S.E. 2d 621. The assignment of error is overruled.

Plaintiffs contend that the court erred in allowing the defendant to testify “with respect to modifications in the contract which were unsupported by consideration” and cite Whitehurst v. FCX Fruit and Vegetable Service, 224 N.C. 628, 32 S.E. 2d 34, in support of this contention. We do not find any exception or assignment of error in the record or transcript dealing with that question. Moreover, the Whitehurst case supports the admissibility of the evidence. We think the broad view of the question of consideration suggested in Helicopter Corp. v. Realty Co., 263 N.C. 139, 139 S.E. 2d 362, is pertinent to this case.

We have carefully considered each of the assignments of error discussed in plaintiffs’ brief and finding them without merit, they are overruled.

No error.

MalláRd, C.J., and PARKER, J., concur.

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Bhitt, J.

Plaintiffs contend that the court committed error in permitting the defendant to testify that neither the oral conversations nor the subsequent written contract, as signed by the defendant, had included a brick wall on the outside of the extended carport.

Plaintiffs’ former home on the same lot had burned and the parties contemplated building a new house very similar to the one that had burned. The burned house had a single-car open carport. The typed contract incorporated a handwritten list of specifications of materials, alterations and the like. Item No. 15 stated: “Add 13' [492]*492on width of carport.” On the same line of the lined paper, in slightly different writing and crowded to the edge of the paper, was the following: “w/brick wall.” As the import of the defendant’s testimony was that the signed agreement had not included bricking up the end of the carport, the contract terms were ambiguous. Defendant was seeking to testify only to the terms of the agreement signed by him. He did not seek to vary the agreement; the parol evidence rule is not involved. Stansbury, N.C. Evidence 2d, § 260, p. 625, § 229, p. 581. See also Bowden v. Bowden, 264 N.C. 296, 141 S.E. 2d 621. The assignment of error is overruled.

Plaintiffs contend that the court erred in allowing the defendant to testify “with respect to modifications in the contract which were unsupported by consideration” and cite Whitehurst v. FCX Fruit and Vegetable Service, 224 N.C. 628, 32 S.E. 2d 34, in support of this contention. We do not find any exception or assignment of error in the record or transcript dealing with that question. Moreover, the Whitehurst case supports the admissibility of the evidence. We think the broad view of the question of consideration suggested in Helicopter Corp. v. Realty Co., 263 N.C. 139, 139 S.E. 2d 362, is pertinent to this case.

We have carefully considered each of the assignments of error discussed in plaintiffs’ brief and finding them without merit, they are overruled.

No error.

MalláRd, C.J., and PARKER, J., concur.

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Bluebook (online)

168 S.E.2d 485, 5 N.C. App. 490, 1969 N.C. App. LEXIS 1373, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cox-v-phillips-ncctapp-1969.

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