#### J. B. COLT COMPANY v. L. L. SPRINGLE and DAISY SPRINGLE.

(Filed 7 October, 1925.)

Contracts — Parol Evidence — Vendor and Purchaser — Statute of Frauds.

Where a contract given for the balance of the purchase price of a lighting plant states that the contract is entire as therein expressed, and that it may not be varied by parol, the purchaser in an action against him may not by his parol evidence maintain the defense that the company by its sales agent had guaranteed the good working condition of the plant for a period of years, etc., there being no evidence of fraud in the factum.

Appeal by plaintiff from Caeteeet Superior Court. Barnhill, J.

Action to recover on note for $298.25 executed by defendants for a lighting plant purchased from plaintiff. Judgment for defendants on a jury verdict. Plaintiff appeals. New trial.

The verdict is as follows:

“1. Was the execution of the note and contract as set out in the complaint procured by false and fraudulent representations, as alleged? Answer: Yes.

“2. If so, what damage, if any, is the defendant entitled to recover of plaintiff? Answer: $44.00.

“3. Did the plaintiff at the time of the execution of this contract, warrant the apparatus furnished to be a thoroughly durable galvanized steel acetylene generator, automatic in action, and of good material and workmanship, as alleged?

“4. If so, did plaintiff breach said warranty?

“5. If so, what damage, if any, is the defendant entitled to recover by reason of said breach?”

The defendant pleaded fraud in the execution of the contract and breach of warranty.

The judgment was against the plaintiff on the note and for the damages assessed in the verdict.

G-. W. Duncan and, J. W. Mason for plaintiff.

G. R. Wheatley for defendants.

Yaesee, J.

The plaintiff’s exceptions contest the admissibility of evidence that plaintiff’s agent stated that the lighting plant would last “from ten to twenty-five years; that if same went bad company would make all necessary repairs; that generator was made of 5-16 galvanized steel; that thickness of generator was 12-16, and that plaintiff would-guarantee same (plant) for ten years.” This evidence was all admitted on the first issue.

*230Tbe contract, tbe execution of wbicb was admitted, contained tbe following provision:

> “It being understood that tbis instrument, upon sucb acceptance, covers all of tbe agreements between tbe purchaser and tbe company, and tbat no agent or representative of tbe company bas made any statements, representations or agreements, verbal or written, modifying or adding to tbe terms and conditions herein set forth. It is further understood tbat upon tbe acceptance of tbis order, tbe contract so made cannot be canceled, altered or modified by tbe purchaser or by any agent of tbe company or in any manner except by agreement in writing between tbe purchaser and tbe company acting by one of its officers.”

And tbe following warranty:

> “It is agreed tbat in accepting tbis order tbe company warrants tbe apparatus furnished to be a thoroughly durable galvanized steel acetylene generator, automatic in action, and of good material and workmanship, and tbat it is on tbe permitted list of tbe National Board of Fire Underwriters.”

Tbe defendant, L. L. Springle, testified tbat tbe plant was satisfactory at time of installation, and that be “bad full opportunity to read contract and read same.” There is no evidence tbat there was fraud in tbe factum. Tbis defendant says tbe plant was satisfactory at time of installation and tbat be wrote several letters to plaintiff, after tbe plant bad been in use, asking for leniency in terms, and stating be was doing all in bis power to pay tbe purchase price, at one time saying be could not pay on account of failure to obtain a contemplated loan, and in some, enclosing payments, and in others, promising to pay, when possible. Tbe defendant says, also, tbat tbe “statements of agent applied only to future service of plant.”

In tbe light of these statements by defendant, tbe evidence objected to is not competent. Tbe contract, wbicb was read by tbe defendant, stipulates expressly against these oral declarations. Upon tbis record, there is no fraud and misrepresentations in procuring tbe defendants’ signatures to tbe contract, or to tbe “purchaser’s statement” as to tbe installation. He cannot, now, show a parol warranty other than, or differing from, tbe written warranty in tbe contract. Machine, Co. v. McClamrock, 152 N. C., 405; Harvester Co. v. Carter, 173 N. C., 229; Murray Co. v. Broadway, 176 N. C., 151; Guano Co. v. Livestock Co., 168 N. C., 447; Simpson v. Green, 160 N. C., 301.

However, tbe jury did not answer tbe issues as to tbe warranty in tbe contract, because they were instructed not to do so if they answered the issue as to fraud in favor of tbe defendants. Hence, tbe defendants are entitled to have these issues again submitted to a jury.

Therefore, there will be a

New trial.