#### LEDFORD v. EMERSON.

(Filed May 25, 1905.)

Parol Evidence — Collateral Writings — Buie as to Parol Evidence.

1. 'In an action to recover the plaintiff’s share of the proceeds of the sale of options, which the plaintiff alleges the defendant has fraudulently withheld from him, it is competent to permit parol evidence of the options and their contents as they are collateral to the issue.

2. The rule that parol evidence cannot be allowed as to the contents of a written instrument applies only in actions between parties .to the writing arid when its enforcement is the substantial cause of action.

ActioN by J. P. Ledford against A. S. Emerson, beard by Judge T. J. Shaw and a jury, at tbe Spring Term, 1905, of tbe Superior Court of Cherokee County. From a judgment of nonsuit, tbe plaintiff appealed.

Busbee & Busbee, Axley & Axley and E. B. Norvell for tbe-plaintiff.

Dillard & Bell for tbe defendant.

Brown, J.

Tbe plaintiff alleges that be procured options on about 60,000 acres of land and placed tbe same in tbe bands of tbe defendant for sale; that tbe defendant sold tbe options for $10,000 casb and paid tbe plaintiff $600, and by false and fraudulent statements to the plaintiff, obtained from tbe plaintiff a receipt in full.

Tbe plaintiff sues to recover $4,400, tbe remainder of bis half of tbe $10,000. Neither tbe options nor their contents are in litigation.

On tbe trial tbe plaintiff proposed to show by bis own evidence that he bad performed bis part of tbe contract between *503himself and defendant; that he took options for about 65,-000 acres of land, delivered the same to the defendant and that the defendant sold them for $10,000. On objection of defendant, the court refused to allow the plaintiff to show this, holding that the plaintiff could not speak of the options without producing them and refusing to allow the evidence offered bj the plaintiff.

His Honor misconceived the kind of action that was being tried, for from his ruling he must have thought that the options or their contents were in litigation — were the gravamen of this action — when they were not. The purpose .of the action is to recover the plaintiff’s share of the proceeds of the sale of the options, which the plaintiff alleges the ■ defendant has fraudulently withheld from him, It was competent therefore to permit parol evidence of the options and their contents. They were collateral to the issue. Our reports contain numerous precedents. Carden v. McConnell, 116 N. C., 875; Pollock v. Wilcox, 68 N. C., 50; Reynolds v. Magness, 24 N. C., 26; 1 Greenleaf Ev., 275-279.

The rule that parol evidence cannot be allowed as to the contents of a written instrument applies only in actions between parties to the writing, and when its enforcement is the substantial -cause of action.

The .contention of the defendant that the plaintiff had waived or abandoned his right to appeal cannot be sustained.

New Trial.