
    INTERNATIONAL HARVESTER COMPANY v. ADDIE C. PARHAM, Administratrix.
    (Filed 9 November, 1916.)
    Contracts, "Written — Vendor and Purchaser — Parol Evidence — Trials.
    In an action on notes for $118 for a manure spreader, title reserved to vendor until payment made, with provision as to sale for nonpayment, and waiver of presentment, protest, etc., parol evidence was competent to show that as a bonus a knife sharpener was verbally agreed to be sent, but it was incompetent to prove a verbal agreement that if it was not sent the note was invalid. It was proper for the trial judge to deduct $3.50, the admitted price of the knife sharpener, from the purchase price of the manure spreader, and render judgment in plaintiff’s favor for the difference.
    Allen, J. dissenting; Walker, J., concurring in dissent.
    Appeal by defendant from Daniels, at July Term, 1916, of Ghaw-VILLE.
    
      T. Lanier for plaintiff.
    
    
      Hieles & Stem for defendant..
   Claek, C. J.

This is an action begun before a justice of tbe peace upon two notes, one for $60 and tbe other for $58, executed by tbe defendant under seal to tbe plaintiff and wbicb recite in tbeir face: {iThis note is given for one Low Spread Manure Spreader. I agree that the title thereto, and to all repairs and extra parts furnished, shall remain in said company, its successors and assigns, until this and all other notes given for the purchase price shall have been paid in money.” There are further provisions as to sale for nonpayment, and waiver of presentment, protest, and so forth. The execution of the note was admitted. The defense set up is that there was a contemporaneous collateral oral agreement that a knife grinder was also to be delivered without further charge, which has not been done, and that the defendant refused to take the manure spreader on that account. The uncontradieted evidence was that the knife grinder was worth $3.50, and deducting that from the sum of the two notes the court gave judgment for the difference. In this there was no error.

It was competent for the defendant to show that there was a parol agreement that the plaintiff was to furnish a knife grinder, and that this was not done, and the court permitted the value of the knife grinder ($3.50) to be deducted from the amounts due on the two notes, but the court properly refused to permit the contemporaneous parol agreement to vitiate, alter, vary, or add to the terms of the agreement tbat unless tbe knife grinder was furnished tbe plaintiff could not enforce tbe written contract of tbe defendant to pay for tbe manure spreader. This principle is so well settled that it requires no citation of authorities. Evans v. Freeman, 142 N. C., 64; Cauley v. Dunn, 167 N. C., 33.

Tbe contract set out in tbe notes is full and complete and provides for the purchase of tbe manure spreader and tbe amount to be paid .therefor, and for a lien by reserving tbe title until tbe purchase money is paid. To permit proof of tbe parol agreement tbat unless something else was done by tbe plaintiff tbe note was defeasible would contradict the written agreement. At tbis term, in Copeland v. Howard, tbe Court held tbat parol evidence tbat tbe date of tbe maturity of tbe note was extended was “properly excluded because in direct contradiction of tbe terms of tbe writing,” citing authorities.

No error.

AxleN, J.,

dissenting: If it was competent for tbe defendant to show tbat there was a parol agreement tbat tbe plaintiff was to furnish a knife grinder, which is conceded in the opinion of tbe Court, and if tbis does not vary tbe writing, I fail to see why tbe defendant cannot go further and show that tbe plaintiff agreed at tbe same time also to furnish tbe manure spreader; tbat one price was agreed on for both, and that tbe note and tbe delivery of both articles were to be concurrent acts.

As I see it, tbe only difference between tbe two propositions is in degree — tbe extent of tbe variance of tbe writing — and tbe application of tbe rule excluding parol evidence when there is a writing does not depend on bow much tbe evidence varies tbe writing, but does it do so at all.

I think, however, .the rule tbat parol evidence will not be admitted to vary a writing has no application here, for three reasons.

In tbe first place, tbe defendant offered evidence tbat tbe plaintiff reduced to writing tbe agreement to deliver tbe manure spreader and tbe knife grinder as tbe consideration for tbe note, and tbis appears in tbe written order.

In tbe next place, tbe defendant does not ask to vary or contradict tbe note, but to show tbat at the time it was executed there was a contemporaneous agreement to deliver two articles of property as the consideration for it, and that' neither was delivered, which is competent under our authorities. Evans v. Freeman, 142 N. C., 64.

Tbe note represents one-balf of the contract (tbe obligation of tbe defendant’s intestate), and tbe defendant ought to be allowed to prove tbe other half of tbe contract (tbe obligation of tbe plaintiff) by tbe written order or by parol evidence; and if an agreement is established that the plaintiff agreed to deliver both articles concurrently, as tbe consideration for tbe note, and offered to deliver one and refused to deliver tbe other, and tbe defendant refused to receive one article without the other, there is an entire failure of consideration, and the plaintiff cannot recover.

Again, the question of introducing parol evidence is not presented, as there is no exception to the evidence.

What, then, does the evidence of the defendant tend to prove?

This is the question, because the issue was answered against the defendant under a peremptory instruction, and the evidence must'therefore be considered in the most favorable light for the defendant.

The agent of the plaintiff delivered the manure spreader to one Critcher on trial, and told him if he bought he would give him the knife grinder, which was also delivered to him.

Critcher refused to buy, and the agent of the plaintiff then undertook to sell to the intestate of the defendant, and the following is all the evidence of this sale to the defendant’s intestate:

T. P. Floyd, witness for defendant, testified: “Was a brother-in-law of George Parham; that he was at Parham’s house when the notes were made. At the same time the notes were made there was an order written to Mr. Critcher for this manure spreader and knife grinder. Mr. Pearce wrote the note. He sold those to Mr. Parham and gave him an order on Mr. Critcher for them. The delivery to Mr. Parham was to be a manure" spreader and knife grinder. Mr. Pearce either wrote the order, or had it written, and gave it to Mr. Parham for these goods. I did not hear any of the conversation between Mr. Parham and Mr. Pearce. I carried the order to Mr. Critcher. Mr. Parham gave the order to me and told me to get what the order called for, or not to bring anything. I left the order with Mr.. Critcher. I did not take the manure spreader because he would not deliver the knife grinder.”

If this evidence is true, it establishes these facts:

(1) That there was one contract for the purchase of the manure spreader and the knife grinder.

(2) That the delivery to the intestate of the defendant was to be a manure spreader and a knife grinder.

(3) That at the time the note sued on was executed the agent of the plaintiff gave to the intestate of the defendant a written order on Critcher for the manure spreader and the knife grinder.

(4) That the intestate sent Floyd with the order after the manure spreader and the knife grinder, telling him not to bring anything unless he got all.

(5) That Critcber refused to deliver tbe knife grinder, and tbe agent did not receive tbe manure spreader.

It also appears in tbe record tbat shortly thereafter tbe intestate of tbe defendant wrote tbe plaintiff demanding tbe return of bis note because Critcber “refused to deliver all to me.”

It is also a fair inference from tbe evidence, I think, tbat one sum was agreed on as tbe purchase price of both articles, as tbe evidence of the defendant shows tbat both were sold, and tbe plaintiff makes no claim except to recover tbe notes.

If these inferences can reasonably be drawn- from tbe evidence, it was error to take tbe case from the jury.

The ease of Millhiser v. Erdman, 98 N. C., 292, is, I think, in point. Millhiser offered to sell Erdman tobacco, “Terms: three, four, and five months notes.” Tbe offer was accepted and tbe tobacco shipped, but Erdman failed to send tbe notes, and it was held tbat tbe title to tbe tobacco did not pass, as tbe execution of tbe notes and tbe delivery of tbe tobacco were to be concurrent acts. Tbe Court says: “Unquestionably, if tbe plaintiff bad not shipped tbe tobacco in controversy to tbe defendant Erdman tbe latter would have bad no title to nor, indeed, any right in respect to it, unless be bad first tendered to the plaintiff the promissory notes which be bad agreed to give it. This is so because a.material and essential part of tbe contract was tbat tbe delivery of the notes on tbe part of Erdman to tbe plaintiff was to be done concurrently, simultaneously, with tbe delivery of tbe tobacco to him on tbe part of tbe plaintiff. Tbe latter proposed to sell the tobacco to Erdman in consideration of bis three promissory notes, running respectively to maturity at three, four, and five months, and the latter, by sending bis order for it, obviously accepted tbe terms. Tbe parties agreed to dp material concurrent acts necessary to effectuate the sale, each dependent on the other, and neither effectual without tbe other. . . . No sale of tbe tobacco was consummated or made effectual under the- contract. There was only an agreement to sell, which was not perfected. Tbe plaintiff did not agree or intend to part with tbe ■title to bis tobacco until be received tbe notes, and Erdman bad no right to expect to get title to it until be sent tbe notes.”

Tbe evidence of the defendant also tends to prove one entire contract, which is not severable, and of such contracts the Court said in Wooten v. Walters, 110 N. C., 254: “A contract is entire, and not severable, when by its terms, nature, and purpose it contemplates and inlends tbat each and all of its parts, material provisions, and the consideration are common each to tbe other and interdependent. Such a contract possesses essential oneness in all material respects. The consideration of it is entire on both sides. Hence, where there is a contract to pay a gross sum of money for a certain definite consideration, it is entire, and not severable or apportionable in law or equity. Thus, where a particular thing' is sold for a definite price the contract is an entirety and the purchaser will be liable for the entire surfr agreed to be paid. And so, also, when two or more things are sold together for a gross sum the contract is not severable. The seller is bound to deliver the whole of the things sold, and the buyer to pay the whole price, in the absence of fraud. Hence, it has been held that where a cow and 400 pounds of hay were sold for $17 the contract was entire.”

If the opinion of the Court stands, the plaintiff will recover the amount of two notes given for two articles sold at the same time under an agreement to deliver both, when the defendant’s intestate has received neither article, and when his refusal to receive one was because of the breach by the plaintiff of its agreement to deliver both.

Walker, J., concurs in this opinion.  