Henderson v. . Forrest
114 S.E. 391
N.C.
1922
Check Treatment
Adams, J.

All the issues, except the fifth and the sixth, were answered by the jury in favor of the appellants, and several of the exceptions, relating tо these two present the same question. For this reason the merits of the controversy do not require extended discussion.

The appеllants first except to the order consolidating the cases on the ground that such consolidation resulted ‍​‌‌‌‌​‌‌​‌‌‌​‌​​​‌‌​‌​‌​‌‌‌​​‌‌‌​​​‌‌​​‌‌​‌​​​‌​‍in confusion which was prejudiсial to the appellants, and that the court had no authority to make the order. In Hartman v. Spiers, 87 N. C., 28, it is held that the consolidation of actions is not аuthorized where they are essentially unlike, and the parties in each are not the same; and, in Wilder v. Greene, 172 N. C., 94, it is said that the power to consolidate actions is one that is often required in order that different suits involving practically the same issues may be joined, where it can be ‍​‌‌‌‌​‌‌​‌‌‌​‌​​​‌‌​‌​‌​‌‌‌​​‌‌‌​​​‌‌​​‌‌​‌​​​‌​‍donе without serious prejudice, for the purpose of preventing confusion and a conflict in verdicts. ¥e think the principles stated in the lаtter case are applicable here. It is *233 admitted that the realty company, at the time the note in controversy was executed, was a copartnership composed of TIenderson and Hagood. In their complaint, Forrest and his wife allege that thе note for $6,500 was executed for the purpose of enabling the realty company to make the first payment on the purchasе price of the Armstrong laird under 'the company’s option; and in his complaint Henderson alleges that the note was executed tо himself, and that the realty company had no connection with or interest in the negotiations for the purchase of the Armstrong tract. It therefore appears, according to the appellee’s contentions, that the actions were pending in the same сourt, at the same time, between' the same parties, and that they involved substantially the same subject-matter, and that service of process on the grantees named in the appellee’s alleged fraudulent conveyance was ancillary to the main cause of action. The issues were framed to meet the contentions of all the parties, and the fact that several of them were answered against the appellee is not legal cause for holding that the consolidation was either unauthorized or improvident. Sumner v. Staton, 151 N. C., 203; Morrison v. Baker, 81 N. C., 76; Glenn v. Bank, 70 N. C., 192.

On thе day the note was given, Forrest and his wife executed a written instrument giving the realty company an option to purchase the Yancе-boro, land on or before 15 December, 1920, upon paying the purchase price, namely, $19,000, of which $5,000 was to be paid in cash and the remainder in three years, the deferred payments to be secured by a mortgage on the land. This instrument, executed under seal by Forrest аnd his wife for a valuable consideration, contains the following stipulations: “It is understood and agreed that the said sale is to be made at the option of the said Hagood Eealty Company or his heirs or assigns, to be exercised on or before 15 December, 1920. It is further understоod and agreed that if the said 'Hagood Eealty Company and his heirs and assigns shall not demand of me a deed herein provided for and tender ‍​‌‌‌‌​‌‌​‌‌‌​‌​​​‌‌​‌​‌​‌‌‌​​‌‌‌​​​‌‌​​‌‌​‌​​​‌​‍payment as herein provided for on or before 15 December, 1920, then this agreement be null and void, and we'are to be at liberty tо dispose •of the land to any other person as we may desire, as if this contract had never been made; but otherwise this contraсt is to remain in full force ■and effect.” The realty company did not exercise its election to make the purchase. Beforе the contract and the note were executed, Forrest told the realty company that "his purchase of the Armstrong land was dependent on a sale of the Yanceboro place; and he contended that as an inducement to his execution of the note and contract the realty company warranted or guaranteed a sale of the Yanceboro place befоre the ■payments were to be made to Armstrong. In support of this contention he testified that Hagood said in the presence of Hеnderson: “We will guarantee you a sale of your Yanceboro farm in time to pay this note *234 and to make Mr. Armstrong’s next payment.” This and other еvidence of like character was ‍​‌‌‌‌​‌‌​‌‌‌​‌​​​‌‌​‌​‌​‌‌‌​​‌‌‌​​​‌‌​​‌‌​‌​​​‌​‍excepted to on the ground that it contradicted the-terms of the written contract..

The evidence, we think, is not subject to this objection. We have no' disposition to modify or disregard the settled rules — intended for the “protection of the provident” and not for the “relief of the negligent,” which prohibit the admission of parol evidence to contradict, add to, or vary the terms of a written contract, even where a part of the contract is in writing and a part is in parol (Moffitt v. Maness, 102 N. C., 457) ; but we must adhere to the lоng line of decisions which hold that where the contract is not one which the law requires to be in writing, and a. part of it is written ‍​‌‌‌‌​‌‌​‌‌‌​‌​​​‌‌​‌​‌​‌‌‌​​‌‌‌​​​‌‌​​‌‌​‌​​​‌​‍and a part is not, еvidence of the unwritten part, if it does not contradict the writing, is admissible for the purpose of establishing the contract in its entirety. Twidy v. Sanderson, 31 N. C., 5; Manning v. Jones, 44 N. C., 368; Daughtry v. Boothe, 49 N. C., 87; Braswell v. Pope, 82 N. C., 57; Cumming v. Barber, 99 N. C., 332; Palmer v. Lowder, 167 N. C., 333. It will be noted, then, that the two-instant questions are whether it is necessary that the alleged promise, ox-contract of warranty (not a technical guaranty), should have been in writing, and if not, whether the evidence excepted to coxxtradicted the written contract or optiоn. ’ Each must be answered in the negative. The promise or warranty alleged to have been made by the appellant is not within the statutе of frauds and may be assimilated to a contract of brokerage, or to a collateral or ancillary contract made by an agent who has been appointed by parol to make sale of his principal’s land, one consideration being sufficient tо support both the principal and the collateral contract. Abbott v. Hunt, 129 N. C., 403; Lamb v. Baxter, 130 N. C., 67; Smith v. Browne, 132 N. C., 365; Palmer v. Lowder, supra; Green v. Thornton, 49 N. C., 230; Partin v. Prince, 159 N. C., 554. As to'the alleged contradiction of the written contract, it will suffice to say that the terms of the option conferring upon the appellants the right to elect whether they would take title to themselves are neither varied nor contradicted by their promise to see that another should purchase if they did not, for their agreement to warrant a sale was entirely collateral to the principal coixtract, and aix allegation of fraud or mistake аs a basis for the rescission or correction of the option was not necessary.

The greater number of the exceptions relate directly or indirectly to the subjects we have discussed, and the others present no question that demands special consideration. We have given the entire record a careful examination, and find

No error.