#### CHARLES U. MILLER v. FARMERS FEDERATION, Inc.

(Filed 15 September, 1926.)

1. Contracts, Written — Parol Evidence — Statute of Frauds.

Where a contract concerning the subject-matter is not required to be in writing, and is partly written, parol evidence is admissible to show the unwritten part so that the contract in its entirety may be enforced when the unwritten part does not vary, add to or contradict that which has been reduced to writing.

S. Same — Telegrams—Letters.

Where a contract rests in parol in part, and the party to be charged has thereafter by letter or telegram confirmed this part of the contract, he may not avoid his obligation thereunder under the statute of frauds, and. the entire contract will be considered’ as having been reduced to writing, and parol evidence concerning the subject-matter will be construed as having merged into the various writings.

3. Same — Fraud—Mistake—Parol Evidence.

Only when a written contract is vitiated by fraud, mutual mistake or some other equitable element, is parol evidence admissible to contradict, add to or vary that which has been reduced to writing by the parties thereto.

Civil actiost, tried before *Broclc, Emergency Judge,*at January Term, 1926, of Haywood.

Tbe only issue submitted to tbe jury was: “Is tbe defendant indebted to tbe plaintiff, and, if so, in wbat amount?”

Tbe jury answered tbe issue $489.13 with interest from 1 October, 1924.

From judgment tbereon tbe defendant appealed.

*Morgan. & Ward for plaintiff.*

*J. W. Ferguson and Garter, Shuford & Hartshorn for defendant.*

*145Brogden, J.

The plaintiff brought suit upon a yerbal contract with the defendant, wbicb, according to the testimony, is substantially as follows: “That on or about 6, 8, or 10 September the plaintiff met Mr. Dodd, manager of the marketing department-of the defendant, and asked him if he was in the market to buy apples. Dodd replied that he was and desired to know of plaintiff if he had a car-load of York apples and how soon he could get them out.” Plaintiff testified further: “I then asked him what they were worth or what he would pay for them. He said he thought he could get $4.00 a barrel, and that he would let me know within the next day or two about handling a car. I believe that was the extent of that conversation I had with him in person. The next day or probably two days afterwards Mr. Dodd called me up on the phone and said he would take a car of York apples at $4.00 a barrel. Then I asked him'about the pay. He said they would pay for them at $4.00 a barrel within ten days, . . . and that he would send me shipping instructions.” It was further agreed, according to plaintiff’s testimony, that the plaintiff was to allow the defendant five per cent commission and a small brokerage fee not exceeding $15.00.

On 12 September, the defendant wrote the following letter to the plaintiff: “We beg to hereby confirm our phone conversation booking minimum car No. 1 Yorks at $4.00 per bbl., less 5 per cent commission to us and $15 brokerage fee. Ship this car on order notify B/L as follows: Order of Farmers Federation, destination, Augusta, Ga. Notify Merry *&*Co., Augusta, Ga. Note on B/L allow inspection. Kindly forward to us all papers properly signed immediately upon finishing loading.

> FARMERS FEDERATION, INC., By F. F. Dodd, *Mgr., Marketing Dept.,*Per G. S. C.”

On 1/ September, the plaintiff wrote the following letter to the defendant: “I am shipping today as per your order of the 12th one car of No. 1 apples, destination, Augusta, Ga., order of Farmers Federation. Notify Merry & Co., Augusta, Ga. This car contains 18 bbls. Gano’s at $3.75 per, and 146 bbls. of Yorks at $4.

*146P. S. — I am picking today about 15 bu. of Albemarle Pippins, tbis is real nice stock and I want $1.25 per basket of one busbel, f. o. b. Waynes-ville, N. C. I wish you would see just wbat you can do with it in your city - and let me know at your earliest convenience.

Yours very truly, Chas. U. Millee.”

On 25 September, F. F. Dodd sent the following telegram to the plaintiff : “Have seen car fruit not a grade and Merry refuses on any terms will endeavor to place car on consignment with reliable dealers if satisfactory to you wire care Walton and Company here.

(Signed) E. C. Dodd.”

On 26 September, the defendant contended that the plaintiff filed for transmission to E. E. Dodd, Augusta, Ga., the following telegram: “Place car on consignment or sell straight if you can.

(Signed) Chas. U. Milx.ee.”

This telegram was not received by Dodd. Plaintiff was asked on cross-examination in regard to this telegram: “(Q.) Is not that the telegram you sent? (A). No sir, I don’t think it is. It might be, but if I sent him one at all, it was more than that. I don’t think that is all of it.”

Between the letter of 12 September, and the letter of 17 September, the plaintiff and the defendant had verbally agreed that the plaintiff could fill out the car by substituting a certain number of barrels of Gano’s apples.

Did the foregoing transaction constitute a sale by the plaintiff to the defendant, or ivas the defendant really acting as agent' or broker for the plaintiff ?

Plaintiff contends that the contract in question is a verbal contract. Upon the other hand the defendant contends that the correspondence constitutes a contract in writing between the parties, and that the written contract supersedes and merges the parol contract sued on.

There are certain well defined principles applicable to the construction of parol and written contracts. These principles, pertinent to the merits of this case, may be classified as follows: 1. Parol testimony cannot be admitted to contradict, add to, or vary a written contract in the absence of fraud, ignorance, mistake or other available defense, warranting a rescission or cancellation. This rule is intended for the “protection of the provident” and not for the “relief of the negligent.” *Patton v. Lumber Co.,*179 N. C., 103*; Watson v. Spurrier,*190 N. C., 729.

2. If the contract is not one which the law requires to be in writing and a part thereof is oral, evidence of the oral portion is admissible, *147if it does not contradict or vary tbe writing, for tbe purpose of establishing tbe contract in its entirety: *Typewriter Co. v. Hardware Co.,*143 N. C., 97; *Palmer v. Lowder,*167 N. C., 331; *Henderson v. Forrest,*184 N. C., 234.

3. If a parol agreement and. a written agreement, dealing with identical subject-matter, are totally inconsistent, tbe written agreement must stand. *Walker v. Cooper,*150 N. C., 131; *Woodson v. Beck,*151 N. C., 144; *Colt v. Turlington,*184 N. C., 137; 6 R. C. L., 923.

There was no objection or exception to tbe testimony of tbe plaintiff in regard to tbe verbal agreement constituting tbe basis of tbe suit. If there was a written contract about tbe same subject-matter between tbe parties, this testimony in so far as it contradicted or varied tbe writing would be inadmissible, but, having been admitted, without protest, tbe objection was waived. *Dobson v. R. R.,*132 N. C., 901; Wigmore on Evidence, 2 ed., vol. 1, sec. 18, *et seq.*

Tbe determinative proposition therefore is whether or not tbe writings are totally inconsistent with tbe verbal contract of sale. Tbe letter of 12 September, from tbe defendant to tbe plaintiff: confirms tbe phone conversation between tbe parties. This statement in writing recognizes tbe existence and efficacy of tbe prior verbal agreement. Tbe letter also refers to 5 per cent commission and $15.00 brokerage fee. These items were also contained in tbe verbal contract. Tbe letter of 12 September, further gave shipping instructions which were in accordance with tbe verbal agreement as testified to by tbe plaintiff, and named tbe price of $4.00 a barrel in accordance with said agreement. Tbe letter of 17 September from tbe plaintiff to tbe defendant referred to tbe same items as well as to tbe few barrels of Gano’s to fill out tbe car, this also being in accordance with tbe verbal understanding between tbe parties. Tbe statement of tbe account contained in tbe letter mentioned tbe same items of brokerage and commission in accordance with tbe verbal understanding.

Tbe strongest piece of evidence supporting tbe contention of tbe defendant is tbe purported telegram from tbe plaintiff, dated 26 September, but tbe plaintiff does not admit either tbe sending of tbe telegram or that tbe language of tbe purported telegram was correct. As to whether or not this telegram was sent was a question of fact for tbe jury.

We are therefore of tbe opinion that tbe correspondence between tbe parties is not totally inconsistent with tbe parol agreement, but that, on tbe other band, tbe correspondence constitutes a written memorial .of tbe verbal agreement and fully recognizes tbe existence of tbe verbal contract alleged by tbe plaintiff.

The charge of tbe court is not a part of tbe record and therefore it must be presumed that tbe jury was correctly instructed as to tbe *148competency and relevancy of evidence, circumstances under wbicb it could be used by them, and as to what extent it could be considered. *S. v. Stancill,*178 N. C., 685.

It appearing therefore that the jury has answered the issue submitted, under what must be assumed to be a proper charge of the court, the judgment, as rendered is sustained.

No error.