Bost v. Bost

Annotate this Case

67 S.E.2d 745 (1951)

234 N.C. 554


No. 391.

Supreme Court of North Carolina.

November 28, 1951.

*747 M. B. Sherrin, Jr., Concord, for plaintiff-appellant.

E. T. Bost, Jr., and Hartsell & Hartsell, Concord, for defendant-appellee.


The parol evidence rule presents an insurmountable obstacle to the plaintiff upon this record. Her effort to establish by word of mouth an interest in the Concord Motor Coach Company owned by her husband and a right to one-half of the proceeds in case of a sale thereof is in direct contravention of the written instruments by the terms of which she released and relinquished to her husband all property rights. She does not attack the separation deeds on the ground of fraud or mutual mistake, but attempts to establish by parol proof a prior collateral agreement which varies and contradicts the written word. This she cannot do.

It is a well established rule of evidence and of substantive law that matters resting in parol leading up to the execution of a written contract are considered as varied by and merged in the written instrument. Williams v. McLean, 220 N.C. 504, 17 S.E.2d 644. This Court has consistently held that "parol evidence will not be heard to contradict, add to, take from or in any way vary the terms of a contract put in writing, and all contemporary declarations and understandings are incompetent for such purpose, for the reason that the parties, when they reduce their contract to writing, are presumed to have inserted in it all the provisions by which they intend to be bound." Ray v. Blackwell, 94 N.C. 10; Oliver v. Hecht, 207 N.C. 481, 177 S.E. 399, 402. "The writing is conclusive as to the terms of the bargain." Williams v. McLean, supra [220 N.C. 504, 17 S.E.2d 646].

Applying this rule to the instant case, the parties are presumed to have integrated their negotiations and agreements into the written memorial embodying the unequivocal terms and conditions of their separation agreement. The term "separation and property settlement agreement" in the absence of clear language or impelling implications connotes not only complete and permanent cessation of marital relations, but a full and final settlement of all property rights of every kind and character.

Plaintiff's contention that the agreement with respect to the bus line was part of the consideration for the separation deed, and that this could be shown by parol evidence does violence to this rule. The contract plaintiff proposes to prove by parol does more than to establish the consideration for the contract. It seeks to incorporate in the agreement property not therein set out and thus to vary its terms. It is sometimes said that the recital of a monetary consideration in a deed is no more than a receipt, is only prima facie proof of payment and may be rebutted by parol proof, but this rule has not been extended to authorize the admission of parol evidence to contradict or modify the terms of a deed or other document executed with the same formalities. Westmoreland v. Lowe, 225 N.C. 553, 35 S.E.2d 613.

Parol testimony may sometimes be used to explain a written contract, but it cannot be offered to alter or contradict any of its provisions. An explanation of a document implies uncertainty, ambiguity and doubt, but a plain case of alteration, that is, an offer to prove by witnesses that a person promised to do something beyond the plain words and meaning of his written contract, is precluded by the rule. "It is best to trust to the words of the writing, which the parties have chosen to protect and preserve the integrity of their treaty, than to rely on human memory for the exact reproduction of their words." Pierce v. Cobb, 161 N.C. 300, 77 S.E. 350, 352, 44 L.R.A.,N.S., 379.

In rejecting the parol evidence of the plaintiff, there was no error. It follows, therefore, that the judgment of nonsuit was correct and must be upheld.