#### LETHA ANDERSON v. W. A. NICHOLS.

(Filed 31 May, 1924.)

1. Contracts — Deeds and Conveyances — Parol Evidence.

In an action to recover upon certain mortgage notes given for the purchase of certain lands, on which was a hotel containing certain articles of furniture, and the defendant sets up a counterclaim for damages for the breach by plaintiff of his contract to deliver the furniture: Held, the failure of the plaintiff’s deed to include the furniture does not exclude defendant’s evidence upon his counterclaim, the statute of frauds not requiring contracts in this respiect to be in writing, and the parol evidence not being contradictory of the written instrument.

2. Courts — Discretion—Appeal and Error — Objections and Exceptions— Juror’s Relationship to Party.

It is within the sound discretion of the trial judge to refuse a motion to set aside a verdict for relationship of a juror to a party litigant, when the general question of relationship had been asked without response, and the trial had been proceeded with without further question or objection.

3. Evidence — Corroboration—Appeal and Error.

Evidence material in corroboration of substantive evidence theretofore admitted on the trial is competent.

*809Appeal by plaintiff from Bryson, J., at November Term, 1923, of Oheeokee.

The verdict was as follows:

1. Is the defendant indebted to the plaintiff by reason of the matters set forth in the complaint, and if so, in what amount? Answer: Yes, $500 with interest thereon from 5 October, 1922.

2. Is the plaintiff indebted to the defendant by reason of the prayer for affirmative relief of the answer? ' Answer: Yes, $500.

Moody & Moody and J. D. Mallonee for plaintiff.

Thos. J. Hill and Dillard & Hill for defendant.

Adams, J.

On 5 October, 1921, the defendant purchased certain property from the plaintiff at the price of five thousand five hundred dollars. He paid $4,000 in cash and executed three promissory notes in the sum of $400 each, payable on 5 November, 1922, 1923, and 1924, respectively. The plaintiff brought suit on the note first maturing and alleged that all the notes had been executed as evidence of the remainder due on the purchase of several parcels of land described in a deed she had delivered to the defendant. The defendant alleged that the plaintiff had contracted to sell him at the agreed price not only the land, but a piano, an organ, a stove, and other enumerated articles described as furniture, which were in a hotel situated on one of the lots, and that the plaintiff had taken possession of these articles and in breach of her contract had failed to deliver them. Upon these allegations he set up a counterclaim against the plaintiff for one thousand dollars.

The first issue was answered by consent. As to the second, the plaintiff in effect requested an instruction that the deed executed and delivered by the plaintiff to the defendant, conveying the land but not the furniture, constituted the contract between the parties and that the counterclaim could not be maintained. The instruction was refused, and the plaintiff excepted. The ruling was correct. It was not in conflict with the principle that parol evidence is not admissible to contradict, add to, or vary the terms of a written instrument. If the entire contract is not required to be in writing it may be partly written and partly oral; and in such case if the written contract be put in evidence the oral part also may be proved, if not at variance with the written instrument. It was competent to show that the title to the furniture was to vest in the defendant under the oral agreement, because it was not in conflict with the deed. Terry v. R. R., 91 N. C., 236; Evans v. Freeman, 142 N. C., 61; Walker v. Venters, 148 N. C., 388; Anderson v. Corporation, 155 N. C., 132; Palmer v. Lowder, 167. N. C., 331; *810 Spencer v. Bynum, 169 N. C., 119; Cherokee County v. Meroney, 173 N. C., 653; Garland v. Improvement Co., 184 N. C., 551.

Tbe plaintiff moved to set aside tbe verdict for tbe reason tbat one of tbe jurors was related to tbe defendant. After bearing affidavits tbe presiding judge found as a fact tbat tbe juror was a first cousin of tbe defendant’s first wife, wbo died about tbe year 1896, leaving no children, and tbat tbe plaintiff’s counsel before tbe jurors were sworn asked tbe general question whether any member of tbe jury was related to tbe defendant. His Honor overruled tbe motion. Under tbe circumstances bis refusal to set aside tbe verdict and grant a new trial was a matter within bis sound discretion and is not reviewable on appeal. Spicer v. Fulghum, 67 N. C., 19.

Tbe other exceptions are not tenable. Tbe judge’s construction of tbe pleadings with respect to tbe payment of interest becomes academic in view of tbe fact tbat tbe first issue was answered by consent. The defendant’s testimony tbat immediately after tbe purchase was effected be rented all tbe property to Blackwell was admissible in corroboration of bis previous statements, as was also evidence of bis declarations to U. S. Nichols. Tbe contention tbat tbe plaintiff bad not listed the notes for taxation was abandoned at tbe trial and, indeed, was not referred to in tbe evidence. Testimony tending to show tbat tbe defendant told Hawkins be was to pay $5,500 for tbe property, which included tbe land described in tbe deed, was not inconsistent with tbe defendant’s position and was properly admitted. Tbe other exceptions are formal.

No error.