Craig v. Calloway

314 S.E.2d 823, 68 N.C. App. 143, 1984 N.C. App. LEXIS 3192
CourtCourt of Appeals of North Carolina
DecidedMay 1, 1984
DocketNo. 8325SC529
StatusPublished
Cited by4 cases

This text of 314 S.E.2d 823 (Craig v. Calloway) 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
Craig v. Calloway, 314 S.E.2d 823, 68 N.C. App. 143, 1984 N.C. App. LEXIS 3192 (N.C. Ct. App. 1984).

Opinion

VAUGHN, Chief Judge.

Plaintiff makes several assignments of error. They concern the trial court’s refusal to allow certain requested instructions, the admissibility of testimony and documentary evidence, and the failure of the trial court to award a new trial based on alleged misunderstanding of the jurors of the consequences of their verdict. We overrule all assignments of error and affirm.

Plaintiff first argues that the trial court incorrectly denied plaintiffs request for a jury instruction that written instruments control any parol evidence to the contrary. Plaintiff contended throughout the trial and contends here on appeal that the deed represents the entire agreement of the parties and therefore parol evidence should not have been considered by the jury. Defendants’ position is that the parol evidence rule only comes into play when a writing is intended as a complete integration of an agreement and that the deed was only a partial integration of the agreement between the parties. We hold that because the evidence tended to show that the writing was only a partial integration that the instruction was properly refused.

The 1 March 1977 deed conveyed certain property to the defendants in exchange for the defendants’ promise to provide plaintiff and her husband supervision for their care, maintenance and needs, with a life estate reserved for plaintiff and her husband. Defendants presented evidence tending to show the existence of a side agreement to convey to defendants upon the deaths of plaintiff and her husband, various farm tools, implements, vehicles and other personalty. This evidence was in the form of testimony by plaintiff and by defendant Oree Calloway concerning the execution by plaintiff and her husband of wills and powers of attorney at the same time the deed was executed, and also by the introduction of those documents into evidence.

Our Supreme Court in Craig v. Kessing, 297 N.C. 32, 253 S.E. 2d 264 (1979), held that parol evidence of a purchase price and expiration date that directly contradicted contract terms was inadmissible. The court defined the parol evidence rule and discussed an exception thereto applicable to the instant case:

It appears to be well settled in this jurisdiction that parol testimony of prior or contemporaneous negotiations or con[147]*147versations inconsistent with a written contract entered into between the parties, or which tends to substitute a new or different contract for the one evidenced by the writing, is incompetent. . . . This rule applies where the writing totally integrates all the terms of a contract or supersedes all other agreements relating to the transaction. The rule is otherwise where it is shown that the writing is not a full integration of the terms of the contract. The terms not included in the writing may then be shown by parol.

Id. at 34-5, 253 S.E. 2d at 265-6. In such cases, where an agreement has been only partially reduced to writing, “the test for determining whether the remaining part can be proved by parol is simply stated: If oral evidence does not contradict written it is admissible; otherwise, it is not admissible.” Mozingo v. Bank, 31 N.C. App. 157, 162, 229 S.E. 2d 57, 61 (1976), cert. denied, 291 N.C. 711, 232 S.E. 2d 204 (1977). Cf. Neal v. Marrone, 239 N.C. 73, 79 S.E. 2d 239 (1953) (parol evidence inadmissible where inconsistent with written instrument, and where it “tends to establish a new and different contract”).

The situation before us fits into this exception to the parol evidence rule that permits the introduction of extrinsic evidence where a writing only partially integrates the agreement and the evidence does not contradict the writing. At least one North Carolina case has applied this exception to a situation involving a deed and a concurrent oral agreement to sell personalty. In Anderson v. Nichols, 187 N.C. 808, 123 S.E. 86 (1924), the Supreme Court held that defendant had stated a cause of action where defendant buyer alleged in his counterclaim that the purchase price included not only the land described in the deed but also certain personal property. The Court held that the trial court’s ruling

was not in conflict with the principle that parol evidence is not admissible to contradict, add to, or vary the terms of a written instrument. If the entire contract is not required to be in writing it may be partly written and partly oral . . . and . . . the oral part . . . may be proved, if not at variance with the written instrument. It was competent to show that the title to the furniture was to vest in the defendant under [148]*148the oral agreement, because it was not in conflict with the deed.

Id. at 809, 123 S.E. at 87. Accord, Manning v. Jones, 44 N.C. 368 (1853) (where agreement to convey land embodied in a deed, parol evidence of oral agreement to make certain repairs of the premises admissible; evidence not offered to contradict, add to or explain main contract). See also Borden, Inc. v. Brower, 284 N.C. 54, 199 S.E. 2d 414 (1973) (where an agreement only partly reduced to writing, North Carolina emphasizes giving the proponent of the oral agreement a chance to prove that it was made).

In our case there was no requirement that the entire agreement be in writing. The evidence indicated that the deed was not intended to contain the entire agreement of the parties, but only that portion of it pertaining to the conveyance of the real property. Furthermore, the evidence regarding the oral agreement to convey personal property in no way contradicted any part of the deed. The plaintiff was therefore not entitled to the requested instruction on parol evidence.

In a related assignment of error, plaintiff contends that the trial court erred in denying its motion in limine to exclude any testimony concerning plaintiff Catherine Craig’s purported will and in allowing the introduction of this will into evidence because plaintiff revoked the will. The denial of this motion was likewise proper.

As already discussed, parol evidence to prove the oral portion of the agreement between the parties concerning personalty is competent. The testimony and evidence regarding plaintiffs former will as well as her power of attorney are competent for this very reason: they tend to demonstrate the existence of an oral agreement between the parties. Although plaintiffs contention that plaintiff has revoked this will, see G.S. 31-5.1, is arguably correct, whether the will has been revoked was not at issue. The defendants never sought to prove the validity of the will. Rather, they introduced it for the purpose of showing the existence of an oral agreement. This was permissible, and plaintiffs motion in limine was hence properly denied.

Plaintiff also argues that the will and power of attorney of Lee Craig, plaintiffs husband, were improperly admitted into evi[149]*149dence. Plaintiff maintains that G.S. 8-51, which disallows a witness to testify about a transaction between the witness and a person since deceased, applies to disqualify the introduction of these documents into evidence. We disagree.

G.S. 8-51 permits a party to testify to anything except “a personal transaction or communication between the witness and the deceased person.” The admission of the will of Lee Craig and his power of attorney was not such a personal transaction or communication. See generally 1 Stansbury’s N.C. Evidence § 73 (Brandis rev.

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Cite This Page — Counsel Stack

Bluebook (online)
314 S.E.2d 823, 68 N.C. App. 143, 1984 N.C. App. LEXIS 3192, Counsel Stack Legal Research, https://law.counselstack.com/opinion/craig-v-calloway-ncctapp-1984.