#### W. E. GARLAND v. LINVILLE IMPROVEMENT COMPANY et al.

(Filed 20 December, 1922.)

1. Appeal and Error — Several Causes of Action — Fragmentary Appeals.

An appeal is not fragmentary where the complaint alleges four distinctive causes of action and the breach of each, and there is no exception raised as to the judgment on two of them, but from the judgment on the other two the plaintiff has appealed, assigning error in the exclusion of his evidence by the trial judge on the two to which his exceptions have been duly taken and prosecuted. Cement Co. v. Phillips, 182 N. 0., 437, cited and distinguished.

2. Same — Issues—Objections and Exceptions.

Where there are several causes of action alleged, and the plaintiff has duly excepted to the exclusion of all evidence on one or more of them, his failure to except to the judge’s refusal to submit issues relating thereto or to except to an issue as to damages which in the court’s discretion may have been submitted as to each of the separate causes alleged, is not necessary to his appeal thereon, and his enforcing the judgment by execution under the judgment on the issues decided in his favor will not estop him.

3. Contracts — Writing—Statute of Frauds — Incomplete Contracts — Evidence — Parol Evidence — Appeal and Error.

When a contract, not required by the statute of frauds to be in writing, is partly in writing and partly oral, parol evidence of the oral part is competent when not contradictory of the written part; and in an action for breach of contract in preventing the plaintiff from cutting and logging certain of defendant’s timber for him, requiring the loading upon ears, it is competent for the plaintiff, to show that defendant agreed by parol to furnish them, when the writing does not specify the one who had obligated himself thereto, and the exclusion of this evidence by the judge constitutes reversible error.

*5524. Compromise and Settlement — Statutes—Distinctive Items of Damages —Receipts.

Where the plaintiff’s damages, caused by the defendant’s breach of contract, are based upon two distinctive items, one for the loss he has sustained in preparing to fulfill his part of the contract, and the other for the loss of profits he would have received except for the defendant’s breach, the plaintiff’s agreeing upon and receiving compensation for the first item does not preclude a recovery upon the second one, under the provisions of our statute relating to compromises, C. S., 895, or by a receipt he has given therefor, when it appears that the settlement had been made in contemplation of the first item alone, without reference to the second, the subject of the action.

Appeal by plaintiff from McElroy, J., at July Term, 1922, of Avery.

Tbis is an action for tbe recovery of damages for breach of a contract for cutting and logging a certain boundary of timber, tbe description of wbicb tract is set out in tbe record. Verdict for tbe plaintiff for $300. Appeal by plaintiff.

Cha/rles Hughes, W. C. Newland, 8. J. Ervin, and 8. J. Ervin, Jr., for plaintiff.

J. W. Ragland and F. A. Lirmey for defendant.

Clark, C. J.

Tbis is an action for tbe recovery of damages by reason of a breach of contract on tbe part of tbe defendants.

There are four separate and distinct contracts alleged in tbe complaint, and four separate and distinct breaches of these contracts are alleged.

Tbe lower court permitted tbe second and third .contracts, and tbe breaches of these second and third contracts, to be considered by tbe jury, and allowed tbe jury to assess tbe damages sustained by reason thereof. No exception to tbe ruling of tbe court, nor to tbe verdict of tbe jury, are taken, or assigned, so far as tbe trial on tbe second and third contracts, or tbe second and third causes of action are concerned. Tbe judgment as to them stands, for there is no exception in tbe record relating to them, no motion for a new trial as to them, and tbe motion for a new trial expressly excepts them, and is confined to tbe first and fourth causes of action for damages. So tbe appeal is restricted to tbe rulings of tbe court on tbe trial of tbe first and fourth causes of action.

Tbe defendants moved to dismiss upon tbe ground that tbis is a fragmentary appeal, tbe plaintiff having obtained judgment for $300, collected tbe same, and appealed. Tbis appeal is by tbe plaintiff for failure to recover on tbe first and fourth causes of action. If the appeal bad been by the defendant, or by tbe plaintiff from a verdict on one or more causes of action, an appeal would not lie until the other matters were tried, but this is not like the case of Cement Co. v. Phillips, 182 *553 N. C., 437, where a counterclaim was pleaded, but on verdict against defendant on two causes of action, the cause was retained for the trial on the third cause of action, for the trial was not completed until the disposition of the case by final judgment. But here the plaintiff having-recovered judgment upon the issue submitted as to the second and third causes of action, it is no estoppel on appeal that he collected that part of the judgment, though the defendants could have objected if they had a counterclaim pending — which is not the case. The trial was complete, judgment being entered for the plaintiff on two causes of action and against him on the other two, since the judge ruled out the evidence which sustained the plaintiffs action as to those causes of action. As the plaintiff was satisfied with the verdict on the issue submitted as to the second and third causes of action, unless he appealed now on the other two causes of action, he never could have errors as to them reviewed. If the plaintiff had been appealing from the judgment as to the second and third causes of action, leaving the other matters untried, it would have been a fragmentary appeal, but the plaintiff was not only satisfied with that, but has collected that sum, and the only matters not disposed of are the rulings of the court as to the first and fourth causes of action, as to which the plaintiff’s evidence was excluded, and he must have appealed now or not at all as to those causes of action.

Ordinarily, when there is more than one cause of action, the failure to except for not submitting issues is conclusive, but the evidence offered by the plaintiff in support of the first and fourth causes of action having been excluded by the court, and exceptions duly entered, there was no ground upon which to submit issues as to them. The plaintiff having excepted in apt time to exclusion of this evidence, is entitled to have it reviewed.

This, therefore, is not the case of a fragmentary appeal, but where a party having succeeded on two causes of action, and is satisfied therewith, is appealing to secure a review of his exceptions for excluding his evidence as to the other two causes of action, which he could not present for review unless he had taken this appeal. Certainly his obtaining judgment and payment on the second and third causes of action, from which defendants did not appeal, was not an estoppel when, as held at this term, the payment of a judgment against him will not be an estoppel on his appealing. Bank v. Miller, post, 593.

Cement Co. v. Phillips, supra, is conclusive that a fragmentary appeal will not lie where, as in that case, judgment was rendered for the plaintiff upon the first and second causes of action and retained as to the third cause of action, and the defendant sought to appeal against the judgment in favor of the plaintiff, leaving the third cause of action still undetermined. Here there was final judgment in favor of the plain*554tiff as to tbe subject-matter of tbe issues passed on, and tbe defendant is not appealing. Tbe appeal of tbe plaintiff is as to tbe alleged errors in excluding testimony to prove tbe other two causes of action wbicb could be presented only by an appeal at tbis time. The authorities cited in Cement Co. v. Phillips, supra, are numerous, and give tbe reasons therefor, wbicb are conclusive, but they do not apply to the facts in this case.

Tbe plaintiff bad to appeal now or never, and tbe fact that be did not appeal from tbe judgment on tbe issue tried, and collected tbe same, is no estoppel as to tbis appeal for excluding evidence as to tbe other causes of action.

Tbe court submitted tbe following issue: “What amount, if any, is tbe plaintiff entitled to recover of tbe defendants?” In tbe discretion of tbe court, tbis issue could have covered all four causes of action, and it was not absolutely necessary that tbe plaintiff should except thereto. Tbe jury answered tbe issue $300. Judgment was entered accordingly, and tbe plaintiff did not appeal, but, as already stated, execution was issued thereon and tbe $300 was paid.

But tbe plaintiff did except to tbe ruling of tbe court excluding certain testimony as to other matters, wbicb therefore did not get to tbe jury, and those exceptions could not be presented except by tbis appeal. Tbe defendant’s motion to dismiss tbe plaintiff’s appeal must, therefore, be disallowed.

Tbe first assignment of error was to tbe court excluding parol evidence that at tbe time tbe written contract was entered into between tbe parties tbe defendants contracted and agreed to furnish tbe cars upon wbicb plaintiff was to load tbe logs, and that tbe defendants were to furnish at least three cars per day. It is true that “contemporaneous parol evidence is not admissible to contradict, vary, or alter tbe terms of a written contract,” but it has been always well settled that “when a contract is not required to be in writing, it is admissible to show by parol testimony that in fact tbe contract was partly in writing and partly oral, and to prove tbe oral part.” Nissen v. Mining Co., 104 N. C., 310, and cases there cited. Also, see citations to that case in 2 Anno. Ed. As said in tbe Nissen case, supra, “Tbis is not varying, altering, or contradicting tbe written instrument, but merely showing further tbe entire contract that was made.”

In tbis case it was error for tbe lower court to decline to permit tbe plaintiff to show by parol testimony tbe collateral or additional contract as to who was to furnish tbe cars, so that they might be loaded, and that tbe defendant verbally contracted to furnish at least 3 railroad cars every day when tbe written contract was silent as to who should furnish tbe cars, or bow many cars every day were to be furnished. Tbe only reference to tbe cars in tbe written contract was tbe scale of *555prices to be paid tbe plaintiff for cutting, hauling, and loading tbe cars, i. e., “$6 per M. feet for logs delivered on railroad cars, and $6.50 per M. feet will be paid for poplar and cucumber loaded on cars. Poplar to be loaded separately.” It was error to exclude parol evidence as to tbis matter, wbieb was not in contradiction nor a variation of tbe written contract.

As to tbe fourth cause of action, tbe allegation in paragraphs Y and 8 of tbe complaint that tbe plaintiff and defendant agreed that if tbe plaintiff would construct roads, build bis camp, and move bis equipment and log tbe timber standing and growing on certain boundaries of land to mill yards Nos. 4 and 5, and saw tbe timber, they would pay him $8 per M. feet for all logs cut and hauled by him to these yards, and afford him steady employment until 1 January, 1921; and that acting in compliance with tbe terms of tbis part of tbe contract, plaintiff, at large expense, purchased supplies for teams and bands, built roads, and moved bis equipment and logging outfit to said boundary, and there built camps, stables, shacks, roads, etc., and began to cut and haul logs to said mill sites, and that after plaintiff bad done all tbis preparatory work, and bad cut and hauled only sixty thousand feet of logs, that tbe defendants, in violation of tbe terms of said contract, ceased operations, closed down their mill, and discharged tbe plaintiff early in November, 1920, by reason whereof plaintiff alleges that be sustained damages in loss of profits be would have made in November and December bad be been permitted to continue bis operations.

Tbe plaintiff alleges that tbe actual cost of tbe above preparatory work was about $200, and when tbe defendants breached their contract and discharged tbe plaintiff they paid him $200, tbe estimated cost of doing tbis preparatory work, and tbe plaintiff thereupon executed tbe receipt which appears in tbe record, and covers only such work.

Tbe lower court held that tbe acceptance of tbis $200 estopped tbe plaintiff from recovery of damages on account of tbe alleged loss of profits during tbe months of November and December.

Tbe authorities that where tbe writing does not contain all tbe terms of tbe contract, when it is not required to be in writing, tbe oral part of tbe contract may be shown by parol evidence are numerous, many of them being cited above, and it was therefore error in tbe court to exclude such testimony.

As tbe logs were not tbe property of tbe plaintiff, and be bad no authority to manufacture, ship, or sell them when they were loaded, it was a matter of evidence in tbe silence of tbe written contract upon whom was tbe duty of furnishing tbe cars. Tbe plaintiff was entitled to show tbis fact just as in Doubleday v. Ice Co., 122 N. C., 675, it was admissible to show upon whom rested tbe duty of keeping tbe cold *556storage in proper condition for tbe safety of tbe stored grapes, or to sbow tbe time for tbe delivery of ice. Johnston v. McRary, 50 N. C., 369.

As to tbe fourth cause of action, it is true tbe acceptance of a lesser sum in full payment of a larger sum is valid under our statute, C. S., 895, but tbe payment of one account is not tbe settlement of another, and tbe receipt does not state that it was in full settlement, as in Thomas v. Gwyn, 131 N. C., 460, and makes no reference to tbe plaintiff’s claim for tbe damages sustained by reason of breach of contract causing tbe loss of profits for tbe months of November and December, by reason of tbe plaintiff’s premature dismissal and tbe cessation of work.

Tbe evidence as to these matters should have been submitted to tbe jury, who alone were competent to find whether or not there was these additional matters set out in an oral contract, and if so, whether there was a breach thereof, and the amount of damages, if any, which the plaintiff was entitled to recover on that account. There should be, therefore, a new trial on the first and fourth causes of action. There was no appeal by either party as to the second and third causes of action, which have been settled.

Error.