44 N.C. 368 | N.C. | 1853
We think there is error in the judgment of the court below. In the month of August, 1850, Augustus Jones, now dead, and *343
the plaintiff entered into a parol agreement for the sale by Jones, to the plaintiff of a tract of land at a stipulated price. It was at the same time further agreed, that Jones should repair the plantation and houses, which was to be done before 1 January, 1851, at which time the plaintiff was to be admitted into possession. The deed was executed and delivered in the same month of August, and at the time of its delivery, to a question put by the plaintiff, Jones answered he would have the repairs made by the time specified. Having failed to do so, this action on the case was brought. The evidence to prove this agreement as to repairs was objected to, but received by the court, subject to the objection. The jury having returned a verdict for the plaintiff, it was set aside, upon the ground that the evidence received was inadmissible, and a judgment of nonsuit given against the plaintiff. In this there is error. It is true as a rule of evidence, that where a contract is reduced to writing, parol evidence cannot be received to contradict, add to, or explain it. The error here consists in considering the evidence in this case as offered for either of these purposes. It was offered to set up another and distinct part of the contract, which never was reduced to writing. A contract which was anciliary [ancillary] to the main one, which was the sale and purchase of the land, and so the parties treated it; for although the deed was drawn, signed, and sealed at the time the trade was made, yet it was not delivered until some weeks after, and some months before Jones was bound to deliver it, and at that time the plaintiff asks him if he does not intend to make the repairs as agreed, to which he replies he did. As soon as the deed was delivered to the plaintiff and he received it, the title passed to the latter unclogged with any conditions (370) whatever; but it did not have the effect of discharging Jones from his obligation to put on the premises the agreed repairs. And as that contract was in parol, it might be proved by parol. Its existence added no new covenant to the deed made by Jones, nor did it contradict or explain any one that was contained in it. The action is maintainable upon the contract as to the repairs made at the time the deed was delivered. The principles decided in the case, Twidy v. Saunderson,
PER CURIAM. Judgment reversed, and venire de novo awarded.
Cited: Daughtry v. Boothe,
(371)