BOBBITT, Chief Justice.
The sole question presented by this appeal is whether, as a matter of law, the evidence offered by plaintiffs, when considered in the light most favorable to them, was sufficient to be submitted to the jury.
Kelly v. Harvester Co.,
278 N.C. 153, 179 S.E. 2d 396 (1971);
Cutts v. Casey,
278 N.C. 390, 180 S.E. 2d 297 (1971);
Roberts v. Memorial Park,
281 N.C. 48, 187 S.E. 2d 721 (1972).
Plaintiffs’ action is based on legal principles stated by Justice (later Chief Justice) Barnhill in
Queen v. Sisk,
238 N.C. 389, 391-92, 78 S.E. 2d 152, 155 (1953), as follows:
“When a sale is consummated upon an acreage basis and there is a deficiency in the quantity actually conveyed, a court of equity will abate the value of the deficiency at the agreed price per acre. [Citations omitted.]
“Where the purchase and sale is upon an acreage basis and the purchaser sues to recover on account of an alleged deficiency in the acreage and a consequent overpayment, he is not required
to allege or prove fraud. The action to recover the excess payment is an action in
assumpsit
for money had and received to the use of the plaintiff, under the doctrine of unjust enrichment. [Citations omitted.]”
Unquestionably, the testimony of Hoots as to his alleged parol agreement with Calaway, if competent, was sufficient to require submission of the first issue and to support an affirmative answer. Its competency is challenged by Calaway as inadmissible under the parol evidence rule.
For a general statement of the parol evidence rule, see Stansbury, N. C. Evidence 2d, § 251, quoted by Judge Morris in her opinion for the Court of Appeals. 15 N.C. App. 346, 351, 190 S.E. 2d 328, 331 (1972).
Having reached the conclusion that consideration -of the testimony of Hoots as to the alleged parol agreement is not precluded by the parol evidence rule, we are not presently concerned with whether the rule is one of substantive law, as stated by Stansbury, or a rule of evidence, as implied in certain of our decisions. See
Products Corporation v. Chestnutt,
252 N.C. 269, 275, 113 S.E. 2d 587, 593 (1960).
We agree with Judge Morris that
Stern v. Benbow,
151 N.C. 460, 66 S.E. 445 (1909), is authority for the decision of the Court of Appeals and our decision in this case, and that the legal principles here applicable are stated by Chief Justice Clark as follows:
“When a contract is reduced to writing, parol evidence cannot be admitted, to vary, add to, or contradict the same. But when a part of the contract is in parol and part in writing, the parol part can be proven if it does not contradict or change that which is written. [Citations omitted.]
“It is true, also, that an agreement for the conveyance of the land is not binding unless reduced to writing and signed by the party to be charged; but a guarantee of the number of acres, like the receipt of the purchase-money or recital of the consideration, is not required to be in writing. [Citations omitted.]”
Id.
at 463, 66 S.E. at 446.
In
Sherrill v. Hagan,
92 N.C. 345 (1885), the action was for the surrender and cancellation of a note and for money paid. Plaintiff purchased a tract of land known as the “George
Hooper Place” from defendant for $2,000, $1,000 of which was paid in cash and the balance secured by two notes. The first note was paid when due. The plaintiff paid $300 on the second note [presumably a $500 note] when it was due. Other than the deed and notes, there was no written evidence of the contract of sale. Over defendant’s objection [based on the “parol evidence rule” and the “statute of frauds”] plaintiff was permitted to testify that before the date of the deed the defendant orally agreed with plaintiff that if the tract did not contain as much as 350 acres the defendant would make good the deficiency and refund the amount of the deficiency at the rate of $5.71 3/7 per acre. After the deed was delivered, plaintiff had the land surveyed and found that it contained only 298 3/4 acres. Defendant denied any such oral guarantee.
Three issues were submitted to the jury and answered as follows:
1. Did the defendant Hagan agree to pay or refund plaintiff $5.71 per acre for the difference between 350 acres and the number of acres actually contained in the land described in the pleadings, in case said land did not contain as much as 350 acres? The jury answered, “Yes.” 2. How many acres did the land contain? The jury answered, “29814 acres.” 3. How much does defendant owe plaintiff, if anything? The jury answered, “$294.06.” The defendant appealed from the judgment entered on the verdict. The Supreme Court, finding no error, affirmed.
The following excerpts from the opinion of Justice Ashe show the basis of decision:
“ [T] he undertaking to make good the deficiency in the number of acres was a distinct and independent contract, and did not purport or stipulate to pass any interest in the land, and, therefore, was not such an agreement as falls within the statute of frauds.”
Id.
at 348-49.
“[C]onceding it to be all one contract, the deed is evidence of one part of the agreement, and the promise to make good the deficiency in the number of acres is another part of the contract left in parol, so that the parol proof offered and admitted did not add to or contradict the deed.”
Id.
at 349-50.
McGee v. Craven,
106 N.C. 351, 11 S.E. 375 (1890), and
Currie v. Hawkins,
118 N.C. 593, 24 S.E. 476 (1896), and
Stern v. Benbow, supra,
involve factual situations similar to
that considered in
Sherrill v. Hagan, supra,
and the decisions in the four cases and the bases of decision are in accord.
However, the only documents involved in those cases were deeds, purchase-money notes, and mortgages. Here consideration must be given to the “Memorandum of Sale.”
The evidence indicates that this “Memorandum of Sale” was prepared by Stephen Calaway and signed by Calaway on the occasion Hoots delivered his $30,000 check. On its face, the “Memorandum of Sale” is an informal document. As noted by Judge Morris, both Calaway and Stephen Calaway testified that this writing did not purport to embrace all terms of the Hoots-Calaway agreement. Stephen Calaway testified: “My intent was a receipt for the money and a summary recital of the payment terms and agreement as to the sale, but not the complete agreement.” The pertinent question is whether the alleged oral agreement in respect of a guarantee of acreage is in conflict with any of the provisions of the “Memorandum of Sale.”
We note that there is no controversy as to the identity of the land involved. The lines and corners of each farm were known to Hoots and to Calaway. According to Hoots, Calaway guaranteed the acreage to be at least 400 acres.
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BOBBITT, Chief Justice.
The sole question presented by this appeal is whether, as a matter of law, the evidence offered by plaintiffs, when considered in the light most favorable to them, was sufficient to be submitted to the jury.
Kelly v. Harvester Co.,
278 N.C. 153, 179 S.E. 2d 396 (1971);
Cutts v. Casey,
278 N.C. 390, 180 S.E. 2d 297 (1971);
Roberts v. Memorial Park,
281 N.C. 48, 187 S.E. 2d 721 (1972).
Plaintiffs’ action is based on legal principles stated by Justice (later Chief Justice) Barnhill in
Queen v. Sisk,
238 N.C. 389, 391-92, 78 S.E. 2d 152, 155 (1953), as follows:
“When a sale is consummated upon an acreage basis and there is a deficiency in the quantity actually conveyed, a court of equity will abate the value of the deficiency at the agreed price per acre. [Citations omitted.]
“Where the purchase and sale is upon an acreage basis and the purchaser sues to recover on account of an alleged deficiency in the acreage and a consequent overpayment, he is not required
to allege or prove fraud. The action to recover the excess payment is an action in
assumpsit
for money had and received to the use of the plaintiff, under the doctrine of unjust enrichment. [Citations omitted.]”
Unquestionably, the testimony of Hoots as to his alleged parol agreement with Calaway, if competent, was sufficient to require submission of the first issue and to support an affirmative answer. Its competency is challenged by Calaway as inadmissible under the parol evidence rule.
For a general statement of the parol evidence rule, see Stansbury, N. C. Evidence 2d, § 251, quoted by Judge Morris in her opinion for the Court of Appeals. 15 N.C. App. 346, 351, 190 S.E. 2d 328, 331 (1972).
Having reached the conclusion that consideration -of the testimony of Hoots as to the alleged parol agreement is not precluded by the parol evidence rule, we are not presently concerned with whether the rule is one of substantive law, as stated by Stansbury, or a rule of evidence, as implied in certain of our decisions. See
Products Corporation v. Chestnutt,
252 N.C. 269, 275, 113 S.E. 2d 587, 593 (1960).
We agree with Judge Morris that
Stern v. Benbow,
151 N.C. 460, 66 S.E. 445 (1909), is authority for the decision of the Court of Appeals and our decision in this case, and that the legal principles here applicable are stated by Chief Justice Clark as follows:
“When a contract is reduced to writing, parol evidence cannot be admitted, to vary, add to, or contradict the same. But when a part of the contract is in parol and part in writing, the parol part can be proven if it does not contradict or change that which is written. [Citations omitted.]
“It is true, also, that an agreement for the conveyance of the land is not binding unless reduced to writing and signed by the party to be charged; but a guarantee of the number of acres, like the receipt of the purchase-money or recital of the consideration, is not required to be in writing. [Citations omitted.]”
Id.
at 463, 66 S.E. at 446.
In
Sherrill v. Hagan,
92 N.C. 345 (1885), the action was for the surrender and cancellation of a note and for money paid. Plaintiff purchased a tract of land known as the “George
Hooper Place” from defendant for $2,000, $1,000 of which was paid in cash and the balance secured by two notes. The first note was paid when due. The plaintiff paid $300 on the second note [presumably a $500 note] when it was due. Other than the deed and notes, there was no written evidence of the contract of sale. Over defendant’s objection [based on the “parol evidence rule” and the “statute of frauds”] plaintiff was permitted to testify that before the date of the deed the defendant orally agreed with plaintiff that if the tract did not contain as much as 350 acres the defendant would make good the deficiency and refund the amount of the deficiency at the rate of $5.71 3/7 per acre. After the deed was delivered, plaintiff had the land surveyed and found that it contained only 298 3/4 acres. Defendant denied any such oral guarantee.
Three issues were submitted to the jury and answered as follows:
1. Did the defendant Hagan agree to pay or refund plaintiff $5.71 per acre for the difference between 350 acres and the number of acres actually contained in the land described in the pleadings, in case said land did not contain as much as 350 acres? The jury answered, “Yes.” 2. How many acres did the land contain? The jury answered, “29814 acres.” 3. How much does defendant owe plaintiff, if anything? The jury answered, “$294.06.” The defendant appealed from the judgment entered on the verdict. The Supreme Court, finding no error, affirmed.
The following excerpts from the opinion of Justice Ashe show the basis of decision:
“ [T] he undertaking to make good the deficiency in the number of acres was a distinct and independent contract, and did not purport or stipulate to pass any interest in the land, and, therefore, was not such an agreement as falls within the statute of frauds.”
Id.
at 348-49.
“[C]onceding it to be all one contract, the deed is evidence of one part of the agreement, and the promise to make good the deficiency in the number of acres is another part of the contract left in parol, so that the parol proof offered and admitted did not add to or contradict the deed.”
Id.
at 349-50.
McGee v. Craven,
106 N.C. 351, 11 S.E. 375 (1890), and
Currie v. Hawkins,
118 N.C. 593, 24 S.E. 476 (1896), and
Stern v. Benbow, supra,
involve factual situations similar to
that considered in
Sherrill v. Hagan, supra,
and the decisions in the four cases and the bases of decision are in accord.
However, the only documents involved in those cases were deeds, purchase-money notes, and mortgages. Here consideration must be given to the “Memorandum of Sale.”
The evidence indicates that this “Memorandum of Sale” was prepared by Stephen Calaway and signed by Calaway on the occasion Hoots delivered his $30,000 check. On its face, the “Memorandum of Sale” is an informal document. As noted by Judge Morris, both Calaway and Stephen Calaway testified that this writing did not purport to embrace all terms of the Hoots-Calaway agreement. Stephen Calaway testified: “My intent was a receipt for the money and a summary recital of the payment terms and agreement as to the sale, but not the complete agreement.” The pertinent question is whether the alleged oral agreement in respect of a guarantee of acreage is in conflict with any of the provisions of the “Memorandum of Sale.”
We note that there is no controversy as to the identity of the land involved. The lines and corners of each farm were known to Hoots and to Calaway. According to Hoots, Calaway guaranteed the acreage to be at least 400 acres. The sale price of $110,000 is in accord with Hoots’s testimony that the sale was based on 400 acres at $275 per acre. Calaway, according to his own testimony, thought the two farms contained 400 acres or more. He testified that his deeds and maps indicated he owned 400 acres or more. The “Memorandum of Sale” refers to “two farms in Advance, N. C. (400 acres more or less).” The tabulation of the acreage in the nine tracts described in the Calaway-Hoots deed exceeds 400 acres. In our view, the alleged oral agreement is not in conflict with any of the provisions of the “Memorandum of Sale.”
We hold that the evidence, when considered in the light most favorable to plaintiffs, was sufficient to be submitted to the jury; that the original denial of defendant’s motion for a directed verdict was correct; and that the court erred by entering judgment for Calaway notwithstanding the verdict.
There remains for consideration a feature of the case which is not discussed in the briefs.
The case is before us solely on plaintiffs’ appeal. The judgment dismissed plaintiffs’ action with prejudice. Defendant
(Calaway) did not except to or appeal therefrom. Hence, the record does not show exceptions, if any, defendant may have noted with reference to the admission or exclusion of evidence or to other features of the trial.
The record shows: After the jury returned the verdict in plaintiffs’ favor, defendant made a motion for judgment notwithstanding the verdict and joined with this motion an alternative motion for a new trial as authorized by G.S. § 1A-1, Rule 50(b) (1). [See Rule 59 relating to grounds for a new trial.] In granting defendant’s motion for judgment notwithstanding the verdict, the court expressed the view that this rendered unnecessary the ruling on defendant’s alternative motion for a new trial and failed to rule thereon.
We note that the court denied an alternative motion of
plaintiffs
for a new trial if the court denied their motion for judgment in accordance with the verdict.
G.S. § 1A-1, Rule 50(c)(1) provides: “If the motion for judgment notwithstanding the verdict, provided for in section (b) of this rule, is granted, the court shall also rule on the motion for new trial, if any, by determining whether it should be granted if the judgment is thereafter vacated or reversed, and shall specify the grounds for granting or denying the motion for the new trial. If the motion for new trial is thus conditionally granted, the order thereon does not effect the finality of the judgment. In case the motion for new trial has been conditionally granted and the judgment is reversed on appeal, the new trial shall proceed unless the appellate division has otherwise ordered.
In case the motion for new trial has been conditionally denied, the appellee on appeal may assert error in that denial;
and if the judgment is reversed on appeal, subsequent proceedings shall be in accordance with the order of the appellate division.” (Our italics.)
The court should have ruled on the merits of defendant’s alternative motion for a new trial but failed to do so. If the court had conditionally denied the defendant’s alternative motion for a new trial, defendant, as provided in Rule 50(c) (1), could have excepted to such order of denial and appealed conditionally therefrom. Incident to such conditional appeal, defendant was entitled to have
his
exceptions included in the case and record on appeal and to set forth the assignments of error which he asserted entitled him to a new trial in the event the judgment n.o.v. was reversed on appeal.
In future cases, the trial court must rule on an alternative motion for a new trial and a party must appeal conditionally from an adverse ruling thereon. In this connection, see generally
Montgomery Ward & Co. v. Duncan,
311 U.S. 243, 85 L.Ed. 147, 61 S.Ct. 189 (1940); 5A J. Moore, Federal Practice, Pars. 50.13-50.17; 9 C. Wright and A. Miller, Federal Practice and Procedure, §§ 2537-2540 (1971).
We note that, under our judicial system, the judge who conducted the trial of this case is no longer the presiding judge of the Twenty-first Judicial District. We deem it inappropriate for a superior court judge who did not try the case to pass now upon defendant’s alternative motion for a new trial.
Under the circumstances of the present case, we have reached the conclusion that justice requires that defendant be afforded an opportunity to have considered on appeal any asserted errors of law which he contends entitles him to a new trial. Accordingly, the judgment of the Court of Appeals, which reverses the judgment n.o.v. and remands the cause for entry of judgment for plaintiffs on the verdict, is affirmed with direction that upon the entry of such judgment defendant be permitted, if so advised, to except thereto and appeal therefrom and upon appeal obtain a review of the errors for which he asserts he is entitled to a new trial.
Affirmed with directions as to order of remand.