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Dixon v. Sedgefield Realty Co.

Filed: August 21, 1979.

WILLIAM H. DIXON
v.
SEDGEFIELD REALTY COMPANY AND JOSEPH K. LENKOWSKY



Appeal by defendant from Barbee, Judge. Judgment entered 24 August 1977 in Superior Court, Guilford County. Heard in the Court of Appeals at Winston-Salem. Heard in the Court of Appeals at Winston-Salem 14 November 1978.

Parker, Judge. Judges Martin (Robert M.) and Erwin concur.

Parker

The sole question to be addressed on this appeal is whether the trial court erred in permitting plaintiff to contradict with parol evidence the contract price which appears in the parties' written memoranda of their agreement. We find that the admission of this evidence was error.

A contract not required to be in writing may be party written and partly oral. However, where the parties have deliberately put their engagements in writing in such terms as import a legal obligation free of uncertainty, it is presumed the writing was intended by the parties to represent all their engagements as to the elements dealt with in the writing. Accordingly, all prior and contemporaneous negotiations in respect to those elements are deemed merged in the written agreement. And the rule is that, in the absence of fraud or mistake or allegation thereof, parol testimony of prior or contemporaneous negotiations or conversations inconsistent with the writing, or which tend to substitute a new and different contract from the one evidenced by the writing, is incompetent.

Neal v. Marrone, 239 N.C. 73, 77, 79 S.E.2d 239, 242 (1953); see, Craig v. Kessing, 297 N.C. 32, 253 S.E.2d 264 (1979).

The contract in this case is not one required to be in writing. However, the memoranda on which appellants rely establish in writing the contract price. The written memoranda do not state the number of units included within that price. However, the number of units was established by plaintiff's own testimony. The one element of their engagement which the parties deliberately put in writing was the contract price. This element cannot be contradicted by parol evidence. There is no allegation or evidence of fraud or mistake but rather, on the contrary, an admission by plaintiff that he approved the first memorandum after it was completed and signed the second after having read it.

The contract price according to plaintiff's own testimony covered 121 apartment units. At the written contract price of

$59,000.00, the unit cost of 121 units very closely approximates $488.00. It was error to permit plaintiff to testify in contradiction of the written memoranda that the parties' agreement was that plaintiff would be paid $576.00 per unit.

New trial.

Disposition

New trial

19790821 ...


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