#### ZEB SUMNER and H. B. MARTIN, Trading as SUMNER & MARTIN, v. GRAHAM COUNTY LUMBER COMPANY.

(Filed 28 May, 1918.)

1. Contracts — Statute of Frauds — Standing Trees — Title.-

A contract made with the owner of lands to cut and peel hemlock trees on his lands at a certain sum per thousand feet does not involve the title to or any interest in the standing trees, and is not one required by the statute to be in writing.

2. Same — Separate Contracts — Parol Evidence.

The defendant orally contracted with the plaintiff to cut and peel hemlock trees growing upon two separate tracts of its land, the one easily accessible and the other difficult of access. The defendant orally agreed that if the plaintiff signed a written cod tract as to the latter tract, he should cut the former one at the same price per thousand feet. Upon this agreement, the plaintiff signed the written contract tendered him, and it is Held,, that evidence of the parol contract was admissible, as it was not intended to be a part of the written one, but a separate and distinct contract which the statute did not require to be in writing. The principle discussed by Waiker, J., where a contract, not required by the statute to be in writing, is partly in writing and partly in parol.

ActioN, tried before Lane, J., and a jury, at Spring Term, 1918, of Ohekokee.

Tbe defendant lumber company bad two tracks of bemlocb timber to cut and peel. One was known as tbe Oboga boundary, and consisted of some 200 acres of rough mountainous land, almost inaccessible, witb scattered timber, and difficult to work over. Tbe other was known as tbe Laurel Creek Boundary, a .comparatively level tract, witb fine timber and easy of access. Defendant offered plaintiffs $2 per thousand feet to cut tbe Oboga boundary and peel and pile tbe bark on it. Plaintiffs refused, but offered to work tbe Oboga boundary at $2, if. defendant would let them work tbe Laurel Creek boundary at tbe same price. Defendant accepted tbe offer. Tbe written contract, appearing in tbe record, dated 15 April, 1915, was prepared, but when it was tendered to plaintiffs for execution they refused to sign it because it did not embrace tbe Laurel Creek boundary. Defendant, by its agent, orally agreed, and as a separate contract, that if plaintiff signed tbe paper as to tbe Oboga boundary, they should be given tbe right to work tbe Laurel Creek land at tbe same price as tbe Oboga, and recognized tbe contract afterwards and affirmed it. Plaintiffs thereupon signed tbe contract.

Plaintiffs worked out tbe Oboga boundary at a loss. While they were operating it, defendant’s agent Day urged them to rush tbe work so as to get into tbe Laurel Creek boundary. Shortly before tbe Oboga boundary was finished, defendant let tbe Laurel Creek boundary to J. L. Truett, who operated it at a profit of $350. Plaintiffs sued for *655damages, alleging that the Laurel Creek boundary contained about 18,-000,000 feet, and that they could have operated it at a profit of $1,800. The jury found that the parol contract was made as alleged, that is as a separate one, and assessed the damages at $850.

Judgment upon the verdict and defendant appealed.

Alley & Leatherwood and Dillarcl & Sill for plaintiff.

M. W. Bell for defendant.

WalkeR, J.,

after stating the case: The first question is whether plaintiffs could offer proof as to the parol agreement respecting ■ the Laurel Creek land, by which they were allowed to work that tract at the same price fixed in the Choga land contract.

As this is a contract for peeling the timber of its bark and piling it on 'the land for the use of the defendant, it is not such a one as is required to be in writing. Ives v. R. R., 142 N. C., 131. In that case the contract was one for cutting trees and converting them into cordwood, which was to be delivered on defendant’s right of way, and we held that a writing was not required under the statute. The Court said:

> “The contract of the parties to this action was not one for the sale of standing trees, but, in the one case, for the sale and delivery of cordwood, and, in the other, for the conversion of trees growing on the defendant’s land into cordwood and the delivery of the same on the defendant’s right of way. It was not contemplated by the parties that there should be a transfer of any title to or interest in the trees as they stood upon the land; and this is essenial to bring the agreement within the purview of the statute,” citing 29 A. & E. Enc. (2 Ed.), 880.

And the Court further said: “It was held in the ease of Smith v. Surman, 9 B. & C., 561, that where the owner of land agreed with another to cut timber from his own land and deliver the trees, when cut down or severed from the freehold, to the latter for a stipulated price, the statute did not apply; and the particular agreement, in that case, being construed to have the said effect in law, was therefore held not to be within the statute. And the converse of the proposition is equally true, that where one contracts with another to cut timber from his own land and deliver it to him when cut or severed, the statute has no application. It has been so expressly decided. Killmore v. Howlett, 48 N. Y., 569; Forbes v. Hamilton, 2 Tyler, 356; Scales v. Wiley, 68 Vt., 39; Green v. Armstrong, 1 Denio, 550; Boyce v. Washburn, 4 Hun, 792; 2 Reed on Statute of Frauds, sec. 711.

> “The Courts properly said in the cases cited that to give the statute the construction contended for would be to destroy the right of recovery of almost every laborer at harvesting or mowing, which generally' and al*656most universally rests on a parol contract, and further, that it would make a writing indispensable to tbe validity' of a contract by tbe owner of a peat-bed or a sand-bank to deliver even a load from it; and, we may add, it would jeopardize tbe rights of every woodman who for hire fells trees in tbe forest.”

But tbe defendant in this case is relying on tbe rale of evidence that when a contract is reduced to writing, parol evidence will not be beard to contradict, vary, or add to tbe same, as the parties are presumed to have expressed tbe entire agreement in tbe writing. Moffitt v. Maness, 102 N. C., 457; Basnight v. Jobbing Co., 148 N. C., 350; Walker v. Venters, ibid., 388; Cherokee v. Meroney, 173 N. C., 653. Tbe rale is a wholesome one and should be carefully and strictly enforced in instances where it properly applies, but it does not exclude tbe evidence admitted in this case, as here tbe plaintiffs did not propose to show that tbe contract as to tbe Laurel Creek land bad been omitted from tbe writing by mistake or fraud, nor that it was agreed that it should be inserted therein, but that tbe writing was signed by them, well knowing that it was not inserted in tbe paper. They proved, though, a parol contract, not required to be in writing, which, as they allege, was separate and distinct from tbe one stated in tbe writing, and intended by tbe parties to operate independently of it. It was not, therefore, merged in tbe writing, as it was not intended that it should be a par thereof, and, in any view, it does not “contradict, add to, or vary” tbe written agreement, but is perfectly consistent with it. Tbe writing was merely signed and a stipulation -then made that tbe plaintiffs should peel tbe bark from tbe hemlock trees on tbe Laurel Creek land at tbe same price and upon tbe same terms as in tbe case of the trees on tbe Cboga land. Instead of being a part of tbe written agreement, it was distinctly separated from it by tbe parties, and was altogether an additional contract as to a different tract of land. It was clearly regarded by tbe parties when it was made as a contract not expressed in tbe written instrument, nor intended to be, and was in reality a subsequent agreement, resting wholly in parol.

Tbe proper rule is thus stated in Brown v. Hobbs, 147 N. C., 73: “A written instrument, although it be a contract within tbe meaning of tbe rule ón this point, does not exclude evidence tending to show tbe actual transaction in tbe following ease: Where it appears that tbe instrument was not intended to be a complete and final statement of tbe whole transaction, and tbe object of tbe evidence is simply to establish a separate oral agreement in tbe matter, as to which tbe instrument is silent, and which is not contrary to its terms nor to their legal effect.” Tbe same doctrine was applied in Manning v. Jones, 44 N. C., 368; Michael v. Foil, 100 N. C., 178; Sherrill v. Hagan, 92 N. C., 345; Bourne v. Sher *657 rill, 143 N. C., 381; Freeman v. Bell, 150 N. C., 146 McKinney v. Matthews, 166 N. C., 576.

> “While parol evidence is not admissible to vary or contradict a written agreement, yet when the agreement is not one which the statute requires to be in writing, it is comptent to show by parol that only part of the agreement was in writing and what was the rest of the agreement.” Palmer v. Lowder, 167 N. C., 333, citing numerous cases.

We have so far been treating the oral terms as those of an entirely separate and distinct contract not stated in the writing and purposely omitted therefrom, because it was such a contract, and, therefore, had no proper place in it. But there is another principle applicable, if the contract should be treated as one having separate parts in itself. There the rule laid down in Cobb v. Clegg, 137 N. C., 153, applies. It was there said: “When it is not intended that a written contract should state the whole agreement between the parties thereto, evidence of an independent verbal agreement is admissible.” Clark on Contracts (2 Ed.), 85, thus states the principle: “Where a contract does not fall within the statute, the parties may, at their option, put their agreement in writing or may 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 varied 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.” So, however we may consider the matter, the parol evidence rule does not apply.

Of course, the oral part of the contract must not contradict that which is written in it. Cobb v. Clegg, supra. It would seem that this ease, in principle, -if not in its facts, is exactly like that of Manning v. Jones, supra.

This disposes of the main question upon which the decision must turn. The other exceptions are without merit. The judge’s charge stated the issues and the law with great accuracy and clearness, and it seems that the jury, upon the evidence and under the guidance of the Court as to the law, have come to the right conclusion.

No error.