#### THE AUDIT COMPANY v. J. A. TAYLOR.

(Filed 31 March, 1910.)

1. Contracts — Guaranty—Failure of Consideration — False Representations.

In an action to recover upon contract for the installing a system of accounts or bookkeeping for defendant’s business, the answer alleged that the plaintiff guaranteed the system to be' more economical and better than the one defendant had been using, which after a fair trial defendant found not to be as good or as economical, and this the defendant could not have previously ascertained: Held, answer sufficient, for it sets up a total want of consideration and a breach of guarantee; and the allegations of representations knowingly and falsely and fraudulently made are not necessary.

2. Same — Harmless Error.

A complete defense to an action upon contract being a want of consideration and a breach of guarantee, it is not error to plaintiff’s prejudice for the court to impose on defendant the additional burden of proving that representations made by plaintiff to induce the contract were falsely and fraudulently made.

3. Judgments — Non Obstante — Plaintiff’s Motion — Confession and Avoidance.

Plaintiff’s motion for judgment non obstante veredicto is applicable only where the defense is in the nature of a plea of confession and avoidance, and the jury find the fact for the defendant, but in law it is an insufficient defense.

4. Contracts, Written — Failure of Consideration — Parol Evidence.

When the writing contains only a part of the contract, the other part may be shown by parol, when not within the statute of frauds.

Appeal by plaintiff from O. II. Alien, J., at October Term, 1909, of New HaitoveR.

The facts are stated in the opinion of the Court.

Kellum & Loughlin for plaintiff.

Rountree & Oarr for defendant.

Clark, C. J.

The plaintiff seeks to recover of the defendant the sum of $413.81 and interest, due under a contract for installing a system of accounts or bookkeeping for the wholesale grocery business of the defendant.

The plaintiff alleged the execution of the contract, the performances of the services thereunder, and the amount due. The defendant admitted the execution of the contract, and at the trial admitted that if anything was due it was the sum of *273$413.81; but be denied tbat anything was due, alleging tbat tbe contract was procured by tbe plaintiff and entered into by defendant upon tbe distinct representation tbat tbe proposed system of bookkeeping would be mucb more efficient and could be operated witb no greater clerical force and more economically than tbe system tbe defendant was then using; tbat be did not know and could not know whether tbe proposed system would be as economical and efficient as it was represented, and tbat be entered into tbe contract in reliance upon the truth of tbe representations as to- tbe economy and efficiency of tbe proposed system. Defendant alleges, further, tbat, after giving the system a fair trial for about three months, be learned tbat it was more expensive and less efficient than bis old system, and tbat be was compelled to discard tbe system entirely; and tbat be is advised tbat tbe contract is not binding because it was obtained by fraud or mistake, and tbe system did not come up to tbe representation or guarantee of plaintiff.

Tbe last paragraph is tbe only reference made to fraud, and it -is insufficient, as tbe plaintiff contends, to set up ' tbat defense, for it fails to allege tbat tbe representations were falsely and fraudulently made, or tbat they were known by the plaintiff’s agent to be false, or were made witb reckless disregard of their truth or falsity, or tbat they were made witb intent to deceive. Cash Register Co. v. Townsend, 137 N. C., 652.

Tbe court charged tbe jury, among other things: “If tbe plaintiff assured the defendant tbat tbe system of bookkeeping which be proposed to install could be worked by defendant’s then present office force, and witb no greater expense, and tbat this representation was untrue in fact and falsely and fraudulently made, and tbat tbe defendant did not know tbat it was untrue, and bad no- means of ascertaining the truth until after tbe contract was made, and tbat if you further believe tbat tbe defendant gave tbe system a full and fair trial, and it could not be worked without additional expense, then plaintiff is not entitled to recover,” to which tbe defendant excepted. Tbe jury found in response to tbe issue tbat tbe defendant was not indebted to tbe plaintiff.

If tbe court bad left out of this charge tbe words “and f alsely and fraudulently made,” tbe instruction would have been corx’ect. In adding those words, tbe court placed upon tbe defendant an unnecessary burden; but tbe plaintiff cannot complain of tbat.

Tbe plaintiff relies upon Cash Register Co. v. Townsend, 137 N. C., 652, and properly insists tbat tbe answer is not a sufficient plea of fraud.

*274This is not the case of a sale of personal property. Tbe answer alleges a sufficient defense in setting up^ a total want of consideration and a breach of guarantee, and the jury found the defense good. The plaintiff cannot complain that the jury further found, under the charge, that the representations were “falsely and fraudulently made” over and above the other matters stated in the charge above, which amounted to an allegation of a total want -of consideration and breach of warranty.

The court below properly overruled the motion for judgment non obstante veredicto. That is applicable only where the defense set up is in the nature of a plea of confession and avoidance, and the jury find the fact with the defendant, but in law it is an insufficient defense. Cotton Mills v. Abernethy, 115 N. C., 403. Here the writing contained only a part of the contract, and it was competent to show the other part by parol evidence. Cumming v. Barber, 99 N. C., 332; Nissen v. Mining Co., 104 N. C., 309. The failure of consideration was necessarily shown by parol. Jones v. Rhea, 122 N. C., 721.

The controversy is chiefly over the facts set up by the answer, and the jury have found them in favor of the- defendant.

No error.