{
  "id": 8551159,
  "name": "GEORGE W. COX, JR., and Wife, MORTY H. COX v. WILSON PHILLIPS",
  "name_abbreviation": "Cox v. Phillips",
  "decision_date": "1969-07-23",
  "docket_number": "No. 693SC278",
  "first_page": "490",
  "last_page": "492",
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    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "name_long": "North Carolina",
    "name": "N.C."
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    {
      "cite": "264 N.C. 296",
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  "last_updated": "2023-07-14T22:58:43.915660+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Mall\u00e1Rd, C.J., and PARKER, J., concur."
    ],
    "parties": [
      "GEORGE W. COX, JR., and Wife, MORTY H. COX v. WILSON PHILLIPS"
    ],
    "opinions": [
      {
        "text": "Bhitt, J.\nPlaintiffs contend that the court committed error in permitting the defendant to testify that neither the oral conversations nor the subsequent written contract, as signed by the defendant, had included a brick wall on the outside of the extended carport.\nPlaintiffs\u2019 former home on the same lot had burned and the parties contemplated building a new house very similar to the one that had burned. The burned house had a single-car open carport. The typed contract incorporated a handwritten list of specifications of materials, alterations and the like. Item No. 15 stated: \u201cAdd 13' on width of carport.\u201d On the same line of the lined paper, in slightly different writing and crowded to the edge of the paper, was the following: \u201cw/brick wall.\u201d As the import of the defendant\u2019s testimony was that the signed agreement had not included bricking up the end of the carport, the contract terms were ambiguous. Defendant was seeking to testify only to the terms of the agreement signed by him. He did not seek to vary the agreement; the parol evidence rule is not involved. Stansbury, N.C. Evidence 2d, \u00a7 260, p. 625, \u00a7 229, p. 581. See also Bowden v. Bowden, 264 N.C. 296, 141 S.E. 2d 621. The assignment of error is overruled.\nPlaintiffs contend that the court erred in allowing the defendant to testify \u201cwith respect to modifications in the contract which were unsupported by consideration\u201d and cite Whitehurst v. FCX Fruit and Vegetable Service, 224 N.C. 628, 32 S.E. 2d 34, in support of this contention. We do not find any exception or assignment of error in the record or transcript dealing with that question. Moreover, the Whitehurst case supports the admissibility of the evidence. We think the broad view of the question of consideration suggested in Helicopter Corp. v. Realty Co., 263 N.C. 139, 139 S.E. 2d 362, is pertinent to this case.\nWe have carefully considered each of the assignments of error discussed in plaintiffs\u2019 brief and finding them without merit, they are overruled.\nNo error.\nMall\u00e1Rd, C.J., and PARKER, J., concur.",
        "type": "majority",
        "author": "Bhitt, J."
      }
    ],
    "attorneys": [
      "Robert G. Bowers for plaintiff appellants.",
      "Beaman & Kellum by Norman B. Kellum, Jr., for defendant ap-pellee."
    ],
    "corrections": "",
    "head_matter": "GEORGE W. COX, JR., and Wife, MORTY H. COX v. WILSON PHILLIPS\nNo. 693SC278\n(Filed 23 July 1969)\n1. Evidence \u00a7 32\u2014 ambiguity in written contract \u2014 parol evidence rule-\nIn tbis action for breach of a home construction contract, the parol evidence rule is not violated by the admission of testimony by defendant to the effect that the written agreement did not include bricking up the end of the carport, where the terms of the contract relative to the ear-port were ambiguous and defendant was testifying only to the terms of the agreement signed by him.\n2. Contracts \u00a7 18\u2014 modification of written contract \u2014 consideration\nIn this action for breach of a home construction contract, testimony by defendant with respect to modifications in the contract was not inadmissible as unsupported by consideration.\nAppeal by plaintiffs from Cowper, J., at the February 1969 Session of CeaveN Superior Court.\nPlaintiffs filed their complaint 3 July 1968 alleging that they and the defendant entered into a contract on 30 May 1967 under which the defendant was to construct a home for the plaintiffs on land belonging to the plaintiffs; that plaintiffs have remained ready to perform, but defendant has failed and refused to perform the contract.\nDefendant demurred 20 August 1968 and the demurrer was overruled 2 October 1968. However, in order to make the complaint more certain, plaintiffs amended on 8 October 1968, alleging that defendant failed to perform the contract in that he failed to complete the walkway, brickwork, carpentry in the carport, and failed to paint the gutters, treat for termites, fit the doors, provide certain light fixtures and carpet, reimburse for interest on construction loan beyond the original completion date, and numerous other specifics.\nThe defendant answered 12 November 1968 admitting receipt of $12,500.00 from the plaintiffs but denying the other material allegations of the complaint. As a further defense and by way of counterclaim, the defendant alleged: The parties entered into a contract for defendant to build, for $15,000.00, a house of standard design known as \u201cThe Atlantic.\u201d The terms of payment were specified in the agreement. After making the agreement, the parties agreed on numerous modifications of the plans, with no agreed price for each modification; the reasonable value of the modifications was $3917.00. The house was not completed by 15 October 1967 as planned because of delays in obtaining the special materials ordered by plaintiffs as well as normal construction delays. For said extras plus the balance on the original contract, plaintiffs owed defendant $6317.00. Defendant stands ready to complete the remaining work of approximately $500 value.\nAt the trial, both parties testified substantially as alleged in their pleadings. The court submitted two issues to the jury, these being the amount, if any, which the defendant was indebted to the plaintiffs and the amount, if any, which the plaintiffs were indebted to the defendant. The jury answered the issues in favor of defendant, and from judgment for the defendant in the amount of $4760.00, plaintiffs appealed.\nRobert G. Bowers for plaintiff appellants.\nBeaman & Kellum by Norman B. Kellum, Jr., for defendant ap-pellee."
  },
  "file_name": "0490-01",
  "first_page_order": 512,
  "last_page_order": 514
}