{ "id": 8553236, "name": "ELRY HOLLOWAY and Wife, PEGGY S. HOLLOWAY v. BILL E. MEDLIN and Wife, RUBY L. MEDLIN, CENTRAL CAROLINA BANK & TRUST COMPANY, Trustee, and SECURITY SAVINGS & LOAN ASSOCIATION", "name_abbreviation": "Holloway v. Medlin", "decision_date": "1968-11-20", "docket_number": "No. 6814DC365", "first_page": "89", "last_page": "94", "citations": [ { "type": "official", "cite": "3 N.C. App. 89" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "126 S.E. 2d 62", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "257 N.C. 447", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568417 ], "opinion_index": 0, "case_paths": [ "/nc/257/0447-01" ] }, { "cite": "61 S.E. 2d 608", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "232 N.C. 670", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "160 S.E. 2d 738", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "268 N.C. 366", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562255 ], "opinion_index": 0, "case_paths": [ "/nc/268/0366-01" ] }, { "cite": "141 S.E. 2d 522", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "264 N.C. 267", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572602 ], "opinion_index": 0, "case_paths": [ "/nc/264/0267-01" ] }, { "cite": "79 S.E. 2d 239", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "239 N.C. 73", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625693 ], "opinion_index": 0, "case_paths": [ "/nc/239/0073-01" ] }, { "cite": "183 S.E. 606", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "209 N.C. 174", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2221289 ], "opinion_index": 0, "case_paths": [ "/nc/209/0174-01" ] } ], "analysis": { "cardinality": 570, "char_count": 13012, "ocr_confidence": 0.593, "pagerank": { "raw": 6.770845263994211e-08, "percentile": 0.41401313358423597 }, "sha256": "c010682869093d551ae05069a85c409f4823305201c619896df5d400d35ff149", "simhash": "1:ed8b14a3333925a3", "word_count": 2150 }, "last_updated": "2023-07-14T16:33:22.618564+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Mallard, C.J., and Campbell, J., concur." ], "parties": [ "ELRY HOLLOWAY and Wife, PEGGY S. HOLLOWAY v. BILL E. MEDLIN and Wife, RUBY L. MEDLIN, CENTRAL CAROLINA BANK & TRUST COMPANY, Trustee, and SECURITY SAVINGS & LOAN ASSOCIATION" ], "opinions": [ { "text": "MORRIS, J.\nDefendants make 35 assignments of error based on some 69 exceptions. The errors assigned have primarily to do with two facets of the trial: one, the application by the trial court of the parol evidence rule; and, two, errors in the charge to the jury.\nThe trial court refused to allow the individual defendants to testify concerning conversations had and purported agreements had with plaintiffs prior to 8 February 1967, the date of the written contract between plaintiffs and defendants Medlin. Defendants Medlin contend this was error. Defendants\u2019 Exhibit 1 is entitled \u201cChanges Medlin Job\u201d. It contains a series of handwritten additions and subtractions, some of which are labeled and some of which are not. It bears the figures \u201c3/18/67\u201d and bears the signatures of B. E. Medlin and Peggy S. Holloway on the front thereof. On the back thereof appears handwritten \u201cadditions\u201d and \u201cdeductions\u201d. Defendants earnestly contend that this constitutes a written contract and that the court erred in admitting any testimony with respect to changes in the 8 February 1967 contract other than those listed on Defendants\u2019 Exhibit 1. Defendants Medlin also urge that any testimony tending to explain the entries on Defendants\u2019 Exhibit 1 should have been excluded.\nThese contentions and the assignments of error relating thereto are without merit. \u201cNo verbal agreement between parties to a written contract, made before or at the time of the execution of such contract, is admissible to vary its terms or to contradict its provisions. Insurance Co. v. Morehead, 209 N.C. 174, 183 S.E. 606. It will be presumed that the writing merged therein all prior and contemporaneous negotiations. Neal v. Marrone, 239 N.C. 73, 79 S.E. 2d 239.\u201d Fox v. Southern Appliances, 264 N.C. 267, 141 S.E. 2d 522. The court properly excluded testimony with respect to conversations and agreements prior to 8 February 1967 not incorporated in the contract of that date and contradictory of its terms. The rule, however, has no application to agreements subsequent to the written instrument, whether those agreements be in writing or oral. Stansbury, N. C. Evidence 2d, \u00a7 258, p. 623, and cases there cited.-There is nothing on the face of Defendants\u2019 Exhibit 1 nor in the evidence to indicate that this is or was ever intended to be a contract. There is nothing in the document itself which gives any meaning to the figures appearing thereon, no language indicating mutual contractual obligations, no execution by two of the parties to the 8 February 1967 contract, nothing indicating an agreement between the two signatories that an accounting between them with respect to changes had been finalized. The court correctly admitted testimony as to' changes after 8 February 1967 and up to the completion of the construction together with testimony tending to explain Defendants\u2019 Exhibit 1.\nAssignments of error 16 and 17 are directed to the issues submitted to the jury. These exceptions to the issues are noted for the first time in the charge of the court in the record on appeal. Nothing in the record indicates that appellants objected and excepted to the submission of these issues nor does the record reveal that appellants tendered issues for submission to the jury and excepted to the court\u2019s refusal to submit any tendered issue. Appellant may not, therefore, challenge the issues for the first time on appeal in his assignments of error. Wooten v. Cagle, 268 N.C. 366, 160 S.E. 2d 738.\nAssignments of error 19, 20, 21, 22 and 23 are all addressed to the court\u2019s recapitulation of the evidence, the contention being that the recapitulation, in many instances, does not conform to the evidence. The record does not indicate that appellants suggested any corrections to the court. The court specifically charged the jury to use their own recollection of the evidence, they being the sole triers of the facts. These assignments are overruled. See State v. Lambe, 232 N.C. 670, 61 S.E. 2d 608.\nThe court properly placed the burden of proof on the first issue and second issue on the plaintiffs and on the defendants with respect to the third issue and the fourth issue. Appellants\u2019 assignments of error 27 and 28 are addressed to the following portion of the charge:\n\u201cThat takes us to the third issue, members of the jury, that is, \u2018Did the plaintiffs breach their construction contract by failing to perform same in an efficient and workmanlike manner?\u2019 On that issue the burden of proof is upon the defendant. Issues 2 and 3 must be taken together. You can answer #2 for the plaintiffs in such an amount as you feel they are entitled to under the evidence. Then #3 is a separate matter.\u201d\nTo instruct the jury to consider together two issues with respect to one of which the plaintiff has the burden of proof and with respect to the other of which the defendants have the burden of proof we think is so confusing to the jury as to be prejudicial error. Additionally, the instruction \u201cYou can answer #2 for the plaintiffs in such an amount as you feel they are entitled to under the evidence\u201d relieves the plaintiffs of their burden of proof to satisfy the jury by the greater weight of the evidence and constitutes prejudicial error.\nAssignment of error 18 is addressed to that portion of the charge as follows:\n\u201cIf, in order to conform the work to the contract requirements, a substantial part of what has been done by the contractor must be undone and the contractor has acted in good faith, or the owner has taken for granted (sic), the owner is not permitted to recover the cost of making the change, but may recover the difference in value.\u201d\nThis portion of the charge was given in connection with the charge on substantial performance. We assume that the words \u201cfor granted\u201d should have read \u201cpossession\u201d. Nevertheless, the record contains no evidence of value and no evidence requiring this charge. This portion of the charge is, therefore, subject to a valid exception. \u201cAn instruction about a material matter not based on sufficient evidence is erroneous. In other words, it is error to charge on an abstract principle of law not raised by proper pleading and not supported by any view of the evidence.\u201d Dunlap v. Lee, 257 N.C. 447, 126 S.E. 2d 62.\nSince these errors require a new trial, and matters complained of by other assignments of error are not likely to occur upon another trial of the matter, we do not deem it necessary to discuss them.\nNew trial.\nMallard, C.J., and Campbell, J., concur.", "type": "majority", "author": "MORRIS, J." } ], "attorneys": [ "Newsom, Graham, Stray horn & Hedrick by Josiah S. Murray, III, for plaintiff appellees.", "Brooks and Brooks by Eugene C. Brooks, III, for Bill E. Medlin and wife, Ruby L. Medlin, defendant appellants." ], "corrections": "", "head_matter": "ELRY HOLLOWAY and Wife, PEGGY S. HOLLOWAY v. BILL E. MEDLIN and Wife, RUBY L. MEDLIN, CENTRAL CAROLINA BANK & TRUST COMPANY, Trustee, and SECURITY SAVINGS & LOAN ASSOCIATION\nNo. 6814DC365\n(Filed 20 November 1968)\n1. Evidence \u00a7 32\u2014 parol evidence rule\nNo verbal agreement between parties to a written contract, made before or at the time of the execution of the contract, is admissible to vary its terms or to contradict its provisions, it being presumed that the writing-merged therein all prior and contemporaneous negotiations.\n2. Evidence \u00a7 32\u2014 parol evidence rule\nThe parol evidence rule has no application to written or parol agreements made subsequent to the written instrument.\n3. Evidence \u00a7 32; Contracts \u00a7 26\u2014 parol agreements changing terms of written contract\nIn an action to recover upon a written contract to build a house, the court properly excluded defendant\u2019s evidence of conversations and agreements with plaintiffs prior to the date the written contract was entered and correctly admitted plaintiffs\u2019 \u2022 evidence of changes in the contract made by the parties after that date.\n4. Appeal and Error \u00a7 32\u2014 assignments of error to the issues\nWhere appellant made no objection or exception at the trial to the issues submitted or to the court\u2019s refusal to submit issues tendered, appellant may not challenge the issues for the first time on appeal in his assignments of error.\n5. Appeal and Error \u00a7 31\u2014 assignments of error to court\u2019s review of the evidence'\nAssignments of error to the court\u2019s recapitulation of the evidence will be overruled where appellants made no suggested corrections to- the trial court and the court charged the jury to use their own recollection of the evidence.\n6. Trial \u00a7 32\u2014 consideration of issues submitted\nAn instruction that the jury might consider together two issues, one of which the plaintiff has the burden of proof and the other of which the defendants have the burden of proof, is held to constitute prejudicial error.\n7. Contracts \u00a7 28; Damages \u00a7 16\u2014 contract action \u2014 instructions as to damages \u2014 burden of proof\nIn an action for breach of a construction contract, an instruction that the jury could answer the issue as to plaintiffs\u2019 damages \u201cin such amount as you feel they are entitled to under the evidence\u201d is held to relieve the plaintiffs of their burden of proof to satisfy the jury by the greater weight of the evidence and constitutes prejudicial error.\n8. Trial \u00a7 33\u2014 instructions not based on evidence\nAn instruction about a material matter not based on sufficient evidence is erroneous.\nAppeal by defendants Bill E. Medlin and wife, Ruby L. Medlin, from Lee, /., March 1968 Civil Session District Court Division, Dueham County.\nPlaintiffs allege that on 8 February 1967 they entered into a contract with individual defendants for the construction of a house on defendants\u2019 lot at a price of $17,500. Subsequently the contract was amended by oral agreements between the parties and, after allowance for all debits and credits for subsequent oral modifications, a net contract price of $17,152 resulted. Work was begun on the house on 1 March 1967, and completed on or about 10 May 1967. Payment under the contract was due 10 days from and after completion. Defendants have paid $14,800 and although demand has been made, defendants have refused to pay the balance due of $2,352. On 31 October 1967, plaintiffs filed a notice of lien. Central Carolina Bank & Trust Company is trustee under a deed of trust executed by the individual defendants securing a note in the amount of $15,000 to Security Savings & Loan Association. Plaintiffs ask for recovery of $2,352 with interest from 20 May 1967, and sale of the property to satisfy such indebtedness as plaintiffs recover of individual defendants.\nIndividual defendants answered, admitted a contract was entered into, denied the amount, denied oral agreements modifying, denied the job had been completed in a workmanlike manner, denied the net resulting contract price was $17,152, admitted the payment of $14,800 and demand for $2,352, admitted the notice of lien, admitted the note and deed of trust, but averred that there remains on deposit with Security Savings & Loan Association the sum of $2,000.\nAs a further answer and defense, set-off, and counterclaim individual defendants allege that the house is constructed in a \u201cpoor workmanlike\u201d manner and not in compliance with the contracts entered into and not in accordance with the plans and specifications. Individual defendants listed some 20 items allegedly not in compliance totaling $2,217.50. They also alleged a contract of 8 March 1967 amending the 8 February contract. They owed on the original contract as amended $16,356, have paid $14,800, \u201cleaving a balance due upon the original contract and as amended based upon the faithful and good performance of the same $1,556.00, which the defendants Bill E. Medlin and wife, Ruby L. Medlin, specifically plead as a set-off against any balance due upon said contract.\u201d Individual defendants allege they have been damaged $661.50 as a result of the failure of plaintiffs to perform the contract, that demand has been made and payment refused.\nPlaintiffs\u2019 reply to the set-off and counterclaim of individual defendants admitted credits due totaling $47 but averred that these had been allowed in the complaint; admitted payment of $14,800; and admitted that defendants had made demand upon them for certain money allegedly due. All other allegations of the set-off and counterclaim are denied.\nUpon issues answered by the jury in favor of the plaintiffs, the court entered judgment against the individual defendants in favor of plaintiffs in the amount of $2,352 and provided that the judgment be a lien against the property described in the complaint from 8 February 1967, subject only to the lien of the deed of trust to Central Carolina Bank & Trust Company, Trustee, to which lien the plaintiffs agreed to subordinate their materialman\u2019s and laborer\u2019s lien. The judgment also provided that funds of individual defendants on deposit with Security Savings & Loan Association be transferred to plaintiffs in partial satisfaction of the judgment and directed individual defendants to endorse such disbursement drafts as may be necessary to effect such transfer. Individual defendants appealed.\nNewsom, Graham, Stray horn & Hedrick by Josiah S. Murray, III, for plaintiff appellees.\nBrooks and Brooks by Eugene C. Brooks, III, for Bill E. Medlin and wife, Ruby L. Medlin, defendant appellants." }, "file_name": "0089-01", "first_page_order": 109, "last_page_order": 114 }