#### R. B. WOODSON v. J. W. BECK.

(Filed 13 October, 1909.)

Insurance — Contracts, Written — Parol Evidence — Contradictory.

In defense to an action upon a due bill specifying' that $92.92 was due on a policy of life insurance, to be paid on tlie delivery of tlie policy by the agent of the company issuing it, it is incompetent to set up by parol that the contract was the surrender of a $1,000 policy for one for $2,000, the latter of which was to be for life, and the annual payment of a premium of $9; and that the due bill was signed under an impression- that it was an order to deliver the old policy under this contract. This would be a contradiction by parol of the terms of a written instrument and not admissible in the absence of fraud or mistake.

Hoke, J., dissenting arguendo; Olabk, C. J., concurring in the ' dissenting opinion.

Appeal from O. II. Allen, J., May Term, 1909, of VaNCE.

The plaintiff sued the defendant before a justice of the peace on the following due bill:

“HeNdeksoN, N. C., 4 December, 1908.

“Due R. B. Woodson $92.92 (ninety-two dollars 92-100) on a policy of life insurance applied for this day in the Equitable Life, said $92.92 to be paid when policy is delivered.

(Signed) J. W. Beck.”

*145Tbe defendant admitted tbe execution of tbe due bill and a tender of tbe policy for $2,000, an ordinary life policy, but alleged tbat tbe contract between bim and plaintiff was tbat tbe defendant could purchase tbe new policy and pay premiums on tbe same by tbe surrender of a $1,000 policy in tbe same company tbat would mature in April, 1909, and tbe payment of $9 per year, and tbat plaintiff refused to perform said contract, and defendant therefore denied all liability on tbe due bill. There was no allegation of fraud or mistake. Tbe justice of tbe peace rendered judgment against defendant, from which be appealed to tbe Superior Court. At tbe trial in tbe Superior Court bis Honor submitted tbe following issue:

“Is tbe defendant indebted to plaintiff, and, if so, in. what amount ?”

Tbe jury, under instructions from bis Honor, responded: “Yes, $92.92 and interest from 30 December, 1908.” Tbe defendant appealed.

Henry T. Powell for plaintiff.

T. T. Hicks for defendant.

Manning, J.

Tbe only question presented by this appeal is tbe correctness of bis Honoi*’s ruling, excluding tbe following testimony of tbe defendant: “Plaintiff offered to insure my life. I told bim I wanted no insurance. He said, ‘You have an Equitable ^policy tbat I can trade you for to your' advantage.’ Asked to see it. I showed it. He saw it was payable to my wife. He said he’d write tbe company, and later said be bad done so. My policy for $1,000 was a twenty-payment policy, on which I bad paid nineteen payments. He proposed to get me a new policy for $2,000, and tbat my old policy would be accepted in payment of all premiums to be due on it, except $9 per year. In other words, tbe old $1,000 policy was to be exchanged for a new $2,000 policy and I was to pay $9 a year additional. I agreed to this, and was examined, signed tbe application and tbe due bill, which I understood was an order binding me to surrender tbe old policy. Nothing was ever said about my paying $92.92 per year for a new $2,000 policy. I never agreed to do so. Three weeks later, when be brought tbe policy for $2,000, which calls for $92.92 per year from me for life, be refused to accept tbe old policy, but said I must arrange tbe surrender of it to tbe company, and be demanded of me $92.92 and tbat I take tbe new policy. This I refused. Tbe policy be offered me is tbe same as now shown me, -and tbe application I signed is, to tbe best of my knowledge, copied correctly in it.”

*146This testimony was excluded by bis Honor, there being no allegation of fraud or mistake, because it contravenes the well-settled and elementary rule of evidence that it is not permissible to add to, vary or contradict tbe terms of a written agreement by a contemporaneous parol agreement, even where no statutory enactment requires the agreement to be in writing. The more recent cases in which this rule is discussed are Walker v. Cooper, 150 N. C., 129; Basnight v. Jobbing Co., 148 N. C., 350; Walker v. Venters, 148 N. C., 388; Medicine Co. v. Mizell, 148 N. C., 384; Cobb v. Clegg, 137 N. C., 153; Evans v. Freeman, 142 N. C., 61. In these cases will be found cited the earlier cases. It is contended, however, by the defendant, that the evidence does not contravene this rule, but was admissible under the rulings of this Court in the cases of Typewriter Co. v. Hardware Co., 143 N. C., 97, and Evans v. Freeman, 142 N. C., 61, and the cases therein cited. The principle, reaffirmed in these cases, is that “where the contract does not fall within the statute of frauds the parties may put their agreement in writing or contract orally, or put some of the terms in writing and arrange others orally. In the latter case, although that which is written cannot be aided by parol evidence, yet the terms arranged orally may be proved by parol, in which case they supplement the writing, and the whole constitutes one entire contract.” Clark on Contracts (2d Ed.), p. 85.

The‘limitations, however, upon the application of this principle, recognized in all the eases in which this principle has been applied, is that the oral collateral agreement, or that part of the agreement not reduced to writing, cannot be permitted to vary, add to or contradict the written agreement, “but, leaving it in full force, as it has been expressed by the parties in the writing, the other part of the contract is permitted to be shown in order to round it out and present" it in its completeness, the same as if all of it.had been committed to writing.” Evans v. Freeman, supra.

The manifest purpose and effect of the evidence offered by the defendant is to show, by parol, a contract entirely variant from and inconsistent with the written agreement. The defendant denies that what the writing contains was, in fact, any part of his agreement with plaintiff, though admitting, by his admission of signature to it, its obligatory force in law. He says the sum of $92.92 was not mentioned at all; that he thought the due bill was an order for the surrender of the old policy; that the only agreement he made was to buy an ordinary life policy for $2,000, as was tendered him, and to pay for the entire contract, to run for his life, by surrendering his twenty-payment policy of *147$1,000 and by tbe payment of $9 per year. There is no part of tbe written contract tbat is not varied and contradicted by tbis parol agreement. For tbe contract contained in tbe writing tbe defendant proposed to substitute, by parol, an entirely different contract. In our opinion, tbe proposed testimony was not competent or admissible under tbe decision of tbis Court in any case. In Typewriter Co. v. Hardware Co., supra, tbe defendant proposed to prove as its defense to an action upon its written promise to pay for a' typewriter tbat at tbe time tbe agent of defendant agreed to allow it a credit of $40 as commissions on four machines sold by him. Tbe Court held tbe evidence admissible, because it did not conflict with tbe written part of tbe agreement.

In Evans v. Freeman, supra, tbe defendant offered to prove by parol, as bis defense to bis note sued upon, tbat it was agreed tbat it should be paid out of tbe proceeds of tbe sale of tbe patent right for which it was given. Tbis Court held tbe evidence competent, as not in conflict with tbe written part of tbe agreement,, bolding “tbat it is competent to show by parol evidence a collateral agreement as to bow an instrument for tbe payment of money should in fact be paid, though tbe instrument is necessarily in writing and tbe promise it contains is to pay so many dollars.”

In Braswell v. Pope, 82 N. C., 57, the plaintiff was allowed to show, as a defense to tbe action upon bis notes, that it was agreed by parol tbat tbe defendant was to accept, as payment of bis notes, an assignment of a judgment secured by a mortgage-on another. In Kerchner v. McRae, 80 N. C., 219, tbe parol agreement, held admissible, showed tbat plaintiff was to credit on defendant’s note tbe value, $3,000, of certain cotton belonging to defendant in tbe bands of plaintiff for sale. Other cases will be found decided by tbis Court “in which tbe application of tbe same principle has been made to various combinations of facts, all tending, though, to tbe same general conclusion tbat such evidence is competent where it does not conflict with tbe written part of tbe agreement and tends to supply its complement or to prove some collateral agreement made at tbe same time.” In all these eases, in which tbe application of tbis principle has been made, tbe parol agreement was limited in its effect to tbe particular obligation sued upon; but, in tbis,‘this is neither tbe effect nor tbe purport of tbe proposed evidence, nor would the defendant be content with such a limitation. He proposes to discharge, not only the due bill to tbe plaintiff, but to discharge the contract with tbe assurance society issuing the policy, by writing into tbat contract tbe parol agreement made with tbe *148plaintiff. The parol evidence not only does not tend to supply the complement of the written agreement or tend to prove some collateral agreement made at the same time as a part of the written agreement and not inconsistent with it, but to prove a contract entirely variant from and inconsistent with it. Writing the parol agreement into the written, no part of the written agreement would be left. We do not think this principle has ever been extended so far, and, mindful of the warning of this Court in Moffitt v. Maness, 102 N. C., 457, repeated in Cobb v. Clegg, 137 N. C., 153, we are unwilling further to relax the well-settled rules of evidence against the admissibility of parol testimony to contradict, vary or add to the terms of a written agreement. We do not intend by what we have said in this decision to preclude the defendant, if he shall be so advised, from bringing his action against the assurance society for a reformation of his contract of insurance upon proper allegation and proof of mistake. After a careful review of the decided cases, we are of the opinion that the evidence was inadmissible and his Honor committed no error in excluding it. The judgment is therefore

Affirmed.

Hoke, J.,

dissenting: I am unable to concur in the disposition made of this case, being of opinion that the evidence offered by the defendant, in effect, only tended to show a different method of payment than that mentioned in the contract. It is well established with us that, as between the original parties, when a note is given, payable in so many dollars, without further written specification, parol evidence may be received tending to establish an agreement that a different method of payment should be accepted.

This was the question directly presented in Typewriter Co. v. Hardware Co., 143 N. C., 97, where it was held by a unanimous Court: “1. It is competent to show by oral evidence a collateral agreement as to how an instrument for the payment of money should in fact be paid, though the instrument is in writing and the promise it contains is to pay in so many dollars.”

And this position has uniformly prevailed with us, and has been sustained in numerous and well-considered decisions, notably Evans v. Freeman, 142 N. C., 61; Walters v. Walters, 34 N. C., 28.

In Evans v. Freeman the Court held: “1. The rule that when parties reduce their agreement in writing, parol evidence is not admissible to contradict, add to or explain it, applies only when the entire contract has been reduced to writing; and where a part has been written and the other part left in parol, it is competent *149to establish the latter by oral evidence, provided it does not conflict with wbat bas been written. 2. In an action on a note, by wbicb the maker promised to pay the sum of $50, being the purchase money for. the right to sell a stock feeder, it was competent to show that it was a part of the agreement at the time the note was given that it should be paid out of the proceeds of the sales of the stock feeder.”

In Brown on Parol Evidence, sec. 117, the position referred to is stated as accepted doctrine, and our decision in Walters v. Walters, supra, and well-considered decisions in other States, are referred to as authority for the statement. And other prior and eotemporaneous parol agreements affecting the obligation given to pay in so many dollars have also been frequently received and acted on. Kelly v. Oliver, 113 N. C., 442; Penniman v. Alexander, 111 N. C., 427.

In Penniman v. Alexander defendant had accepted a draft without further specification, and in action brought proposed to show that his acceptance was on a condition that had not been complied with, the evidence offered being as follows: “Defendant offered himself as a witness, and proposed to show that his acceptance of paper was on condition that the drawer, Mooney, was building some houses for defendant, where brick was used, and was building sainé by contract, payable in installments as work progressed; that said Mooney abandoned work and gave up contract before payments were due, and he never became indebted to said Mooney, and that he was only to pay bill on said acceptance in case he became indebted to Mooney for said amounts.”

This evidence was ruled incompetent by the trial judge, and in granting a new trial for error Burwell, J., said: “It cannot be contended that the rights of the plaintiffs against the defendant are stronger than if he had given them his promissory note for the sum named in the writing on which this action is brought, instead of accepting the order, as he did. ' If he had done so— that .is, had given to plaintiffs his promissory note for the amount of the order — it would have been competent for him, if sued on the note by the payee, to prove that there was a collateral agreement between him and them to the effect that he should not be required to pay except upon the happening of certain events or that the note was without consideration.”

Placing the interpretation on the evidence adopted by the court, there is perhaps no serious impairment of an accepted principle, either wrought or threatened, but I think, by correct interpretation, that the evidence rejected amounts to no more than a eotemporaneous parol agreement affecting the method of *150payment — that is, that the value of an existing policy should be allowed defendant, and a certain portion of it received year by year in reducing the regular annual premiums, and that, under a proper application of the authorities cited, the evidence should have been received.

The case of Walker v. Venters, 148 N. C., 388, to my mind, in no way militates ágainst this position. In that case there was a special method of payment stipulated and provided for in the written contract — that is, in twenty bales of merchantable lint cotton, each weighing 500 pounds, and the proposition was to prove a parol agreement that plaintiff could at his option satisfy the demand by paying $4,000 in money. This involved a substantial alteration of the written terms of the contract, and the Chief Justice, in disallowing the evidence, said: “Such evidence is never admitted if the wording of the written contract is clear or if the evidence offered is. in direct contradiction of the intrinsic meaning of the language of the contract.”

But the general written promise, “to pay in dollars,” is not allowed to have this restrictive effect, and, as heretofore stated, in such instruments cotemporaneous parol agreements are always received, tending to show a different method of payment.

For the reasons indicated, I think the evidence competent and that a new trial should be awarded.

ClaRK, C. J., concurs in dissent.