dissenting: The record supports no recovery.
The plaintiff alleges a contract to buy a farm consisting of 158 acres and certain personal property used in connection therewith. There is no allegation of any separate agreement in respect of the personal property. But one contract is alleged.
The entire understanding was reduced to writing on 18 May, 1940. It is in the form of an option executed by Leslie Bullard and wife to Lance Williams. The property described therein is “that certain tract of land containing 145 acres, more or less, in Lumberton Township, Eobeson County, known as Green Valley Dairy Farm, as shown by attached map.” There is no mention of any personal property in the option, and no allegation that it was omitted by fraud, imposture, mutual mistake or accident.
It is well-nigh axiomatic that no verbal agreement between the parties to a written contract made before or at the time of the execution of such contract, is admissible to vary its terms or to contradict its provisions. Ins. Co. v. Morehead, 209 N. C., 174, 183 S. E., 606. The rule is, that “parol evidence will not be heard to contradict, add too, 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.
Applying this principle to the facts in hand, it was said on the original hearing, “the parties integrated their negotiations and agreements into the written memorial embodying an unequivocal offer to sell a certain number of acres of land on definite terms. It is established, not only as a rule of evidence, but also as one of substantive law, that matters resting *231in parol leading up to the execution of a written contract are considered merged in the written instrument.” There was, then, upon the execution of the option, no contract in respect of the personal property except that attached to the freehold. If the option excluded the difference between 145 and 158 acres, and we have held that it did, it likewise excluded the personal property not affixed to the soil. The written option is at variance with the idea of a trust. Optionor-optionee relationship differs from that of trustor-trustee, both in law and in fact. Hence, the rule which prohibits the introduction of parol testimony to vary, modify, or contradict the terms of a written instrument, would exclude the evidence now being considered by the Court. A single contract is alleged and the evidence shows but one. The ease stands on a different footing so far as concerns the competency of evidence with the allegation of trustortrustee relationship eliminated.
Plaintiff testifies: “I accepted the deed that was made in accordance with the option and paid the balance of the purchase price. ... I had full knowledge of all the facts with reference to what that deed conveyed.”
Nothing was said about any personal property at the time the option was exercised and the deed taken. The conversation centered around the alleged shortage of 13 acres of land.
The question then arises whether an optionee who exercises a written option and gets all that the option calls for, can later add to the terms of the writing by parol, and recover according to the alleged parol modification. ¥e answered in the negative on the original hearing, and this is reaffirmed and stands in respect of the real estate. There is no plea of the statute of frauds. But the majority now answers in the affirmative so far as it affects the personal property. Thus, the holding is that the written word abides in so far as it refers to land, but may be added to in respect of personal property. This distinction has not heretofore been made in any case, and it is at variance with all the decisions on the subject. As early as Etheridge v. Palin, 72 N. C., 213, it was said: “Parol testimony is not admissible to add to a written contract.” The Court was there speaking of a contract to sell both real estate and personal property, and the addition sought to be made was in respect of the personal property.
Moreover, there is no consideration for any additional recovery. The plaintiff has received all that the option called for at the price agreed upon. All that the parties agreed to was merged in the option, and this was exercised with full knowledge of the facts. To hold otherwise is to bulge the record in favor of the plaintiff.
Nor is this all. Since writing the above in answer to the theory advanced by the majority, a concurring opinion has been filed herein. *232Tbe same procedure was followed in the case of Evans v. Rockingham Homes, Inc., 220 N. C., 253. Here, as there, the concurrence gives added significance to the dissent. If the plaintiff be estopped in respect of the land, why not also in respect of the personal property ? As between the parties, there was but one transaction, one contract, one consideration, one price, one purchase, one sale. The statute of frauds is not involved. The estoppel is against the plaintiff. The character of the property has no bearing on the matter.
And now to reach for a harder blow, it appears that both deliverances of the majority proceed on premises alien to the record. There is neither allegation nor competent evidence to show that plaintiff “purchased the personal property described” from the defendants. The allegation is that the defendants purchased the property, both real and personal, in solido, and took title thereto in trust for the plaintiff, as witness the following from the complaint: “21. That defendants purchased the Green Yalley Farm . . . for the use and benefit of the plaintiff and purchased the personal property located thereon for the same purposes, and defendants . . . now hold such title ... as they hold to such property as trustee for the plaintiff.” Evidence was offered to show the purchase of the farm, but the defendants came forward with a written agreement which contradicted the allegation and evidence of trusteeship. The plaintiff admitted the writing. Upon this showing, the case was nonsuited. We affirmed. The rehearing is limited to the personal property.
The initial difficulty with the position of the majority is, that it lacks allegation to support it. We have said as recently as Whichard v. Lipe, ante, 53, “The plaintiff must make out her case secundum allegata and the court cannot take notice of any proof unless there be a corresponding allegation.” The rule is, secundum allegata et probata, i.e., according to what is alleged and proved. “Eecovery is to be had, if allowed at all, on the theory of the complaint, and not otherwise.” Balentine v. Gill, 218 N. C., 496, 11 S. E. (2d), 456. Such was the law up to the present rehearing.
Secondly, it was originally said herein “the parties integrated their negotiations and agreements into the written memorial.” This is now the law of the case. It is res judicata. It is in direct conflict with the suggestion in the concurrence that the agreement may be partly in parol. It likewise conflicts with the allegations of the complaint. So, notwithstanding the previous interpretation of the writing, which is reaffirmed as to the land, the present holding is, that the plaintiff may go to the jury on something pertaining to the personal property which is not alleged and is not competent to be shown. Again, we have some new law. O’Briant v. Lee, 214 N. C., 723, 200 S. E., 865. It is quite unusual for the Court to take contradictory positions in the same case.
*233Thirdly, there is no allegation that the plaintiff purchased any property of any kind, at any time, from the defendants. The action is to establish a parol trust as set out in the complaint. In this connection, it is worthy of note the plaintiff offered 3L M. Biggs, president of Mansfield Mills, Inc., who testified that in the sale of the farm to Leslie Bullard the personal property was not included. “That did not include the personal property in connection with it, as I remember.” The resolution of the corporation, which appears in the plaintiff’s evidence, was to accept the offer of Leslie Bullard to purchase “the real estate belonging to the corporation known as the Dairy Farm, containing approximately 158 acres, with buildings situate thereon according to plat.” Hence, taking either horn of the dilemma, the case fails.
Finally, if the agreement was to pay $14,000.00 for “that certain tract of land containing 145 acres . . . known as Green Valley Dairy Farm,” and we have so interpreted the writing, what was to be paid for the personal property? The complaint is silent on the subject. It is difficult to perceive upon what theory the ease is to be submitted to the jury. ' If it is to he submitted upon the allegation of a trust, as set out in the complaint, the plaintiff’s own evidence shows that Bullard did not buy the personal property at all.
After all, the case is a simple one. The complaint alleges, and the plaintiff sought to establish, a parol trust. ‘ The evidence offered cuts the ground from under the plaintiff’s alleged cause of action. The correct result was reached on the original hearing.
My vote is to dismiss the petition.
'W’iNBORNE and DeNNY, JJ., concur in dissent.