
    JOBBERS OVERALL COMPANY v. C. S. HOLLISTER COMPANY.
    (Filed 3 October, 1923.)
    1. Evidence — Written. Contracts — Parol Evidence.
    Matters resting in parol leading up to tbe execution of a written contract are considered as merged in tbe written instrument, and may not contradict or vary its terms.
    2. Same — Condition Precedent.
    Tbe rule excluding parol evidence tbat contradicts or varies a written contract into wbicb it bas merged, does not apply wben it tends to show a' condition precedent to tbe effectiveness or tbe operation or binding effect of tbe written instrument.
    3. Same — Appeal and Error — Prejudice—New Trials.
    Tbe' purchaser of goods gave tbe salesman of tbe vendor a written order therefor, and offered evidence tending to show that it was agreed that tbe written instrument should be effective only if be could countermand in time an order for like goods be bad theretofore given another concern, which be bad been unable to do: Held, sufficient as tending to show a condition precedent to tbe effectiveness of tbe written instrument, and its exclusion by tbe trial court was reversible error.
    Appeal by defendant from Grady, J., at May Term, 1923, of CbaveN.
    Civil action to recover tbe value of certain overalls, alleged to have been sold and delivered to defendant by plaintiff.
    From a directed verdict in favor of plaintiff tbe defendant appealed, assigning errors.
    
      H. P. Whitehurst and Gmon & Guión for plaintiff.
    
    
      Moore & Bunn and R. A. Nunn for defendant.
    
   Stagy, J.

Plaintiff’s agent secured from tbe defendant a paperwrit-ing purporting to be an unconditional order for certain overalls to be shipped by plaintiff to defendant. Tbe writing contained tbe following stipulation: “This contract is not subject'to cancellation unless delivery is delayed beyond a reasonable length of time.” There is no contention of any delay in delivery.

Defendant denied liability and, upon tbe trial, offered to sbow that tbe order in question was given witb tbe distinct understanding and upon tbe express condition tbat tbe same should not become effective or operative if certain overalls previously ordered from another dealer were received by defendant; and further,' tbat before plaintiff bad acknowledged and accepted said order, defendant advised tbe plaintiff by letter tbat defendant would receive tbe overalls previously ordered as aforesaid, and tbat defendant would and did thereby cancel tbe order given to plaintiff’s agent. Notwithstanding this letter, plaintiff thereafter shipped tbe overalls and now brings this suit to recover their value as per stipulated price.

All of tbe defendant’s proposed evidence was excluded on objection. Therefore tbe single question presented by tbe appeal is tbe competency or incompetency of tbe evidence offered by tbe defendant.

If tbe evidence in question were offered for tbe purpose of establishing a condition subsequent, resting in parol, and in direct conflict witb tbe express terms of tbe written instrument, it was properly excluded. Tbe general rule is, tbat no verbal agreement between tbe parties to a written contract, made before or at tbe time of tbe execution of such contract, is admissible to vary its terms or to contradict its provisions. All such agreements are considered as varied by and merged in tbe written contract. “It is a rule too firmly established in tbe law of evidence to need a reference to authority in its support, tbat parol evidence will not be heard to contradict, add to, take from or in any way vary tbe terms of a contract put in writing, and all contemporary declarations and understandings are incompetent for such purpose, for tbe reason tbat tbe parties, when they reduce their contract to writing, are presumed to have inserted in it all tbe provisions by which they intend to be bound.” Smith, C. J., in Bay v. Blackwell, 94 N. C., 10.

On tbe other band, if defendant’s purpose was to show a condition precedent, prior to tbe happening of which it was agreed tbe contract should not become effective or operative, tbe proposed evidence was competent, and it was error to exclude it. Building Co. v. Sanders, 185 N. C., 328, and cases there cited. “Tbe manual delivery of an instrument may always be proved to have been on a condition which has not been fulfilled, in order to avoid its effect. This is not to show any modification or alteration of tbe written agreement, but tbat it never became operative, and that its obligation never commenced.” Devens, J., in Wilson v. Bowers, 131 Mass., 539.

¥e think tbe evidence offered by tbe defendant .brings tbe instant case within tbe latter rule and tbat a. new trial must be awarded and another jury impaneled to pass upon tbe evidence.

New trial.  