The facts and assignments of error appear in the opinion of Montgomery,J. This action was commenced in the court of a justice of the peace to recover of the defendant an amount alleged to be due to the plaintiff for work and labor performed for the defendant in raising a sunken flat or barge filled with coal, and for other services rendered in connection therewith. The first cause of action sets out an express contract, the second declares as for a quantum meruit. The defendant denies the right of the plaintiff to recover on the ground (35) that the contract was in writing and entire, and that the plaintiff has not performed his part of the same. The contract is in the following words and figures:
"WASHINGTON, N.C. 7 September, 1891.
"Received of E. V. Murphy fifteen dollars, in part payment for raising barge of coal, and taking up coal from bottom of river at S. R. Fowle Son's wharf, and preparing the two barges for towing to Tarboro, and going and looking after them from Washington to Tarboro, the full amount being $55 for the entire contract.
"R. W. HARRIS."
During the trial the plaintiff offered evidence tending to show that the contract had been modified after its execution to the extent of relieving the plaintiff of every obligation thereunder except that of raising the *Page 20 barge, and that for any services the plaintiff should render after the barge was raised the defendant was to pay him two dollars per day. The defendants excepted to the introduction of this evidence on the grounds, first, that there was an express contract in writing and entire, between the parties, and that the plaintiff could not recover for his services as on a quantum meruit, nor for part performance; and further, that parol evidence could not be allowed to contradict, alter or modify the written contract. The exception can not be sustained. In Meekins v. Newberry,101 N.C. 17, it is said, "It is a settled rule of the law that when the parties to a contract reduce the same to writing, in the absence of fraud or mutual mistake, properly alleged, parol evidence can not be received to contradict, add to, modify or explain it." And this rule was recognized before and has been affirmed in numerous cases since that (36) decision. But in all those cases the offer was to change or to modify or to alter the written contract by evidence in parol of declarations and understandings made either contemporaneous with or prior to the execution of the written contract. The rule, however, does not apply in cases like the one before the Court, where the modification is alleged to have been made subsequent to the execution of the writing. Browne Parol Ev., 99; Greenleaf Ev., 303; Swain v. Seamens, 9 Wallace, 271; Emerson v. Slater, 22 Howard, 41. In the last cited case the court cited the case of Gross v. Nugent, 5 Barn. Ad., 65, and quote from it the rule as laid down by Lord Denman: "After the agreement has been reduced into writing it is competent to the parties in cases falling within the general rules of the common law at any time before the breach of it by a new contract, not in writing, either altogether to waive, dissolve or annul the former agreement, or in any manner to add to, or subtract from, or vary, or qualify the terms of it, and thus to make a new contract." One of the witnesses, Walter Spencer, testified that after the contract in writing was entered into, while the work was going on at the wharf, Murphy (a deceased partner of the defendants) agreed that Harris should only raise the barge, and that he should be released from the balance of the contract, and that all the services that the plaintiff might render after the flat was raised should be considered extra, and that the plaintiff should receive therefor two dollars per day. Several other witnesses testified concerning the conversation between the plaintiff and Murphy, and these witnesses said that the only modification of the contract was that the plaintiff was not required to get up from the bottom of the river the coal which had slipped off the barge when it sunk. The testimony was irreconcilably contradictory. His Honor instructed the jury: "Now if the jury should believe that the witness, Walter (37) Spencer, told the truth, and that the contract was so modified, that they should find that the defendants are indebted to the *Page 21 plaintiff in the sum of forty dollars, that being the balance of the contract price; and also for any extra services after the flat was raised, at the rate of two dollars per day. The plaintiff claims that he was engaged five days in transferring the coal from the flat to the wharf, at two dollars per day; and that he was engaged five days in watching the flat, at two dollars per day. But, on the other hand, if the jury should believe that the witness, Walter Spencer, did not tell the truth, and should believe, as testified by the other witnesses, that the only modification of the contract was the plaintiff was not required to get up the coal from the bottom of the river, then, it being admitted that the other provisions of the contract on the part of the plaintiff, viz: the preparation of the barges for towing, and going with them, and looking after them from Washington to Tarboro, had not been performed by the plaintiff, the contract being entire and indivisible, the plaintiff would not be entitled to recover."
The defendants excepted to the charge. The exception can not be sustained. There are numerous decisions in our reports to the effect that the court can not single out a witness or witnesses where the testimony is conflicting and charge the jury that if such witnesses have told the truth, or that if they believe those witnesses, to let their verdict be so and so.S. v. Rogers, 93 N.C. 523; Anderson v. Steamboat Co., 64 N.C. 399;Weisenfield v. McLean, 96 N.C. 248; Jackson v. Commissioners,76 N.C. 282. If the instruction complained of seems to be obnoxious to the prohibition contained in the above-named cases, it is only seemingly so and not really so. In the case before the court, the witness, Spencer, was not singled out in the offensive sense of that word. The attention of the jury was sharply drawn to the contradiction between the testimony of that witness and that of the other witnesses, and the (38) jury were instructed in substance to weigh the testimony of them all. They were told that if they believed this witness, Spencer, had told the truth, and that the contract was modified as he had testified, then to find for the plaintiff; and in the same breath they were told, "But on the other hand if they jury should believe that the witness, Spencer, did not tell the truth, and should believe as testified by the other witnesses, that the only modification of the contract was the plaintiff was not required to get up the coal from the bottom of the river, then . . . the contract being entire and indivisible, the plaintiff would not be entitled to recover." The credibility and the character of the witness, Spencer, were no more on trial before the jury than were the credibility and character of the other witnesses. It was impossible for the jury to have been misled by this charge so as to have believed that it was his Honor's opinion that more weight was to be given to Spencer's testimony than to that of the other witnesses whose testimony was in conflict with his. *Page 22
The other exceptions are not sustained, and, as they are connected with and are dependent upon these already discussed, it is needless to go into them.
NO ERROR.
Cited: Jones v. Rhea, 122 N.C. 726; Williams v. R. R., 130 N.C. 120;Ore Co. v. Powers, ib., 153; Freeman v. Bell, 150 N.C. 148; McKinney v.Matthews, 166 N.C. 580; Palmer v. Lowder, 167 N.C. 333.
(39)