Lineberry v. Lineberry

296 S.E.2d 332 (1982)

Lorene LINEBERRY v. J. Michael LINEBERRY.

No. 8123DC1225.

Court of Appeals of North Carolina.

October 19, 1982.

*333 Finger, Park & Parker by M. Neil Finger, Elkin, for plaintiff-appellee.

Jenkins, Lucas, Babb & Rabil by S. Mark Rabil, Winston-Salem, for defendant-appellant.

VAUGHN, Judge.

Defendant presents three issues on appeal. The first issue is whether the trial judge properly admitted parol evidence to change the written terms of the contract.

In general, when the language of a contract is unambiguous, the court may not ignore or delete any of its provisions. As stated in Adder v. Holman & Moody, Inc., 288 N.C. 484, 492, 219 S.E.2d 190, 196 (1975), "The intention of the parties must be determined from the language of the contract, the purposes of the contract, the subject matter and the situation of the parties at the time the contract is executed." An ambiguous term may be explained or construed with parol evidence. Vestal v. Vestal, 49 N.C.App. 263, 271 S.E.2d 306 (1980).

The question here is whether the provision on the bottom of page two in the contract is ambiguous. A statement is ambiguous if it is susceptible of more than one meaning. Defendant contends that the statement is not ambiguous because it may fairly be interpreted in only one way. We agree. The provision states three alternatives available to plaintiff if defendant failed to sell 100% of the quota. First, plaintiff could give defendant a written signed release and make all arrangements necessary to permit defendant to resell the unsold tobacco allotment to other farmers. Second, plaintiff could credit defendant for unsold pounds at thirty cents per pound. The third alternative would be for plaintiff to allow defendant to use the unsold pounds in 1981. This means theoretically each *334 pound of tobacco allotment could be either used for tobacco grown by defendant, sold to another farmer, credited to defendant at thirty cents per pound (and used by plaintiff the following year), or used by defendant the following year. Since defendant failed to grow 80% of his effective allotment, he was precluded from transferring his allotment to other farmers, but the remaining two choices, thirty cents credit or the carry-over to 1981, were still available. Because defendant chose to deduct the thirty cents per pound for the unused allotment, plaintiff used the excess allotment the following year. To allow plaintiff to recover thirty cents per pound from defendant after using the allotment in 1981 would be unfair.

Since we do not find the contract ambiguous, the parol evidence was improperly admitted.

Defendant's second argument is that the trial court erred in admitting parol evidence regarding an alleged promise by defendant to plant and grow plaintiff's full tobacco allotment.

The contract provided that "the party of the second part is entitled to produce 11,353" pounds. The contract did not require defendant to produce 11,353 pounds.

"Any or all parts of a transaction prior to or contemporaneous with a writing intended to record them finally are superseded and made legally ineffective by the writing." 2 Brandis on North Carolina Evidence § 251 (1982). If the oral testimony would vary or contradict the written agreement, it should be excluded. Van Harris Realty, Inc. v. Coffey, 41 N.C.App. 112, 254 S.E.2d 184 (1979). An excellent statement of the rule is found in an old North Carolina case:

A contract not required to be in writing may be partly 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).

Since there was no finding that the contract was not a final agreement, the alleged oral agreement to plant the full allotment should not have been admitted.

Defendant's third argument is that the trial court erred in denying defendant's motion for summary judgment.

Summary judgment should be granted "if the pleadings, depositions answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." G.S. 1A-1, Rule 56(c).

In this case the contract is not ambiguous, and the actions of the parties are not in dispute. The issues raised by plaintiff were inadmissible under the parol evidence rule. Since there is no genuine issue of material fact, summary judgment should have been entered in favor of defendant.

Reversed and Remanded.

HILL and JOHNSON, JJ., concur.