#### C. M. PALMER v. R. L. LOWDER and Wife.

(Filed 18 November, 1914.)

1. Contracts, Written — Substitution by Parol — Principal and Agent — Broker’s Commission — Statute of Frauds — Evidence.

An agreement made between tbe owner of lands and a broker, that tbe latter should sell tbe lands divided into lots, etc., and receive as compensation for services to be rendered tbe difference between an agreed price and that which tbe lots would bring at tbe sale, does not come witbin tbe meaning of tbe statute of frauds requiring tbe contract to be reduced to writing; and where performance of tbe contract is.sought by tbe broker, it is competent for tbe defendants to show that tbe written contract bad been subsequently abandoned and a new contract substituted by tbe parties by parol, which tbe plaintiff bad refused to carry out.

2. Contracts, Written — Statute of Frauds — Entire Contract — Parol Evidence.

When specific performance of a written contract is sought, which tbe law does not require to be in writing, it is competent for tbe defendant to show, when it does not vary or contradict tbe writing, that tbe entire agreement between tbe parties bad not been embraced in tbe written contract, and that it in part rested in parol.

3. Reformation of Instruments — Equity—Mutual Mistake — Parol Evidence.

Where" tbe specific performance of a written contract is sought in an action, it is competent for tbe defendant to show by parol evidence tbe omission of certain parts of the agreement by mistake or inadvertence of tbe parties, their draftsman, or agent, in drawing up tbe instrument.

Appeal by defendants from Shaw, J., at February Term, 1914, of STANLY.

B. L. Smith and Jerome & Price for plaintiff.

B. E. Austin, J. B. Price, and B. Lee Wright for defendants.

*332Clare, 0. J.

Tbis is an action for specific performance of á contract to sell land. Tbe plaintiff was a real estate agent in Albemarle, and testified tbat be bad no interest in tbe lgjid except to sell it as a broker. Tbe plaintiff and defendants entered into a contract relative to tbe lots in question in wbicb it was agreed tbat tbe plaintiff- should have tbe lots laid off, streets run, blocks made, and a map of tbe property, one of wbicb 'should be turned over to tbe defendants, and tbe plaintiff was to put certain lots on tbe market at certain prices, and all over and above these particular prices tbe plaintiff was to have for bis services. R. E. Austin, attorney, was requested to reduce tbe agreement to writing. Tbe defendants contend tbat be put only a portion of tbe contract in writing, wbicb, hurriedly signed by defendants, was left in tbe attorney’s bands with instructions not to be delivered to plaintiff till further instructions from the defendants, but by some means tbe plaintiff obtained possession of it and put it on record. Tbe defendants further contend tbat tbe words “to him or” wbicb were interlined were Mot put there by their .authority.

Tbe defendants further contend tbat a difference having arisen between tbe parties, they later orally agreed to abrogate tbe written contract and made a new contract.

There was evidence from Mrs. Lowder tbat tbe plaintiff told her of tbis new contract wbicb be bad made with her husband, and stated tbe •substance of tbe new contract, wbicb be went over and wbicb was entirely inconsistent with tbe contract sued on; tbat tbe plaintiff told her tbe details of tbis new contract, wbicb she recited. Tbe plaintiff objected to tbis evidence, and it was excluded, and defendants excepted. Tbis exception must be sustained. “When tbe contract is wholly executory, a mere agreement between tbe parties tbat it shall no longer -bind them is valid, for tbe discharge of each by tbe other from bis liabilities under tbe contract is a sufficient consideration for tbe promise of tbe other to forego bis rights”; and tbe Court further said: “Such subsequent oral agreement may enlarge tbe time of performance or may vary other terms ■of tbe contract or may waive and discharge it altogether. Tbe term ■cancellation of a contract implies a waiver of all rights thereunder .by tbe parties. If, after a breach by one of tbe parties, they agree to cancel it and make a new contract with reference to its subject-matter, tbat is a waiver for any cause growing out of tbe original breach. And •tbis is tbe rule, even though tbe original contract was under seal.” Lipschultz v. Weatherly, 140 N. C., 365; Brown v. Lumber Co., 117 N. C., 287. Tbe exclusion of tbis evidence was a material error, and entitles tbe defendants to a new trial. She also testified tbat tbe plaintiff told her tbe same thing in another conversation, and when she asked him for *333tbe old contract, be bad answered: “Mrs. Lowder, I destroyed tbat wben we went into tbe new contract, because it was no good.” Tbis evidence was struck out, wbicb was also error.

In Adams v. Battle, 125 N. C., 158, tbe Court bolds tbat in many cases an instrument under seal may be released or discharged by parol agreement or a contract subsequently entered into, notwithstanding former rulings to tbe contrary. Tbe court below evidently erred by supposing tbat tbis was a conveyance, or a contract for an interest in land, wbicb required an instrument under seal to reconvey. It was, however, merely a broker’s agreement to sell tbe land, be agreeing to act as agent for a certain compensation and tbe other parties agreeing to pay tbat compensation.

In Harris v. Murphy, 119 N. C., 34, tbe Court says: “Tbe rule tbat parol evidence will not be permitted to contradict, modify, or explain a written contract does not apply where tbe modification is alleged to have been made subsequent to tbe execution of tbe contract.” In Robinet v. Hamby, 132 N. C., 356, citing Holden v. Purefoy, 104 N. C., 167, it is said: “Tbe parol waiver of a written contract to convey land, amounting to a complete abandonment, will bar specific performance. But tbe acts and conduct constituting such abandonment must be positive, unequivocal, and inconsistent with tbe contract.” Tbe excluded evidence of tbe defendants tended to show a complete waiver on tbe part of plaintiff, and further, tbat there was a new contract to take tbe place of tbe written contract, wbicb tbe plaintiff failed and refused to carry out, and tbis precludes him from asking, for specific performance.

While parol evidence is not admissible to vary or contradict a written agreement, yet wben tbe agreement is not one wbicb tbe statute requires to be in writing, it is competent to show by parol tbat only part of tbe agreement was in writing and what was tbe rest of tbe agreement. Nissen v. Mining Co., 104 N. C., 309; Colgate v. Latta, 115 N. C., 138; Taylor v. Hunt, 118 N. C., 171; Sams v. Price, 119 N. C., 573; Bresee v. Crumpton, 121 N. C., 125; Jones v. Rhea, 122 N. C., 725; Ivey v. Cotton Mills, 143 N. C., 194; Stern v. Benbow, 151 N. C., 462; Audit Co. v. Taylor, 152 N. C., 274; Kernodle v. Williams, 153 N. C., 476; Rogers v. Lumber Co., 154 N. C., 112; Lumber Co. v. Brown, 160 N. C., 283. Indeed, no proposition of law can be better settled. Tbis contract being a mere authority to a broker to sell real estate, bis authority was not required to be in writing. Lamb v. Baxter, 130 N. C., 67; Abbott v. Hunt, 129 N. C., 403; Smith v. Brown, 132 N. C., 365.

Tbe court also erred in refusing tbe prayer to instruct tbe jury tbat tbe defendants bad a right to show tbat tbe written contract was not all of tbe contract, but tbat certain parts were omitted and were in parol and tbat a certain part bad been inserted by mistake and inadvertence. *334 Evans v. Freeman, 142 N. C., 61; Typewriter Co. v. Hardware Co., 143 N. C., 97; Brown v. Hobbs, 147 N. C., 73. If there was a mistake in tbe insertion or omission of matter by Mr. Austin, bis evidence was competent to prove that fact, and tbe Court would correct tbe mistake. Warehouse Co. v. Ozment, 132 N. C., 839; King v. Hobbs, 139 N. C., 173; Bourne v. Sherrill, 143 N. C., 381.

Tbe court also erred in refusing to charge tbe jury, as prayed, that contracts with brokers to sell real estate need not be in writing, and that tbe terms of such agreement may be proven by parol. Abbott v. Hunt, 129 N. C., 403, and cases there cited and cases since, citing that case. See Anno. Ed.

This contract need not have been in writing, and if only part was in writing, tbe other part could be shown by parol. It was competent to show that it was abrogated by a subsequent parol agreement. And it was also competent to show that there were errors by mutual mistake or by mistake of tbe mutual agent in drawing up tbe instrument. Of course, if it was not abrogated and there was not mutual mistake in any of its terms, tbe writing was conclusive as to tbe agreement of tbe parties, so far as it went, and could not be contradicted or varied by a contemporaneous parol agreement.

In tbe exclusion of evidence and in tbe refusal to charge as above set out there was

Error.