ELECTRO LIFT, INCORPORATED
v.
MILLER EQUIPMENT COMPANY.
No. 68SC170.
Court of Appeals of North Carolina.
April 2, 1969. Certiorari Denied May 19, 1969.*456 Benjamin D. McCubbins, and George L. Burke, Jr., Salisbury, for plaintiff appellee.
Graham M. Carlton, Salisbury, for defendant appellant.
FRANK M. PARKER, Justice.
The parties at the trial stipulated execution of their original contract by which plaintiff had agreed to sell and defendant to buy certain specified equipment. They stipulated that the equipment originally agreed on between them was to be as described in defendant's written purchase order dated 4 August 1962. This writing described a motor driven trolley designed to travel at a specified speed upon a track "and to turn approximately 8' radius." The present controversy centers on whether this particular original contract specification was thereafter effectively modified.
Parties to a contract may, by mutual consent, agree to change its terms. Furthermore, a written contract may ordinarily be modified by a subsequent parol agreement and such subsequent agreement may be either express or implied by conduct of the parties. Whitehurst v. FCX Fruit and Vegetable Service, 224 N.C. 628, 32 S.E.2d 34. However, to be effective as a *457 modification, the new agreement, whatever its form and however evidenced, must possess all elements necessary to form a contract. Mutual consent is as much a requisite in effecting a contractual modification as it is in the initial creation of the contract. 17 Am.Jur.2d, Contracts, § 465, p. 934.
In the present case, the terms of the original contract between the parties having been established by their stipulation, the burden was on the defendant to show the modification which it contended had been made. Russell v. Boice Hardwood Co., 200 N.C. 210, 156 S.E. 492. In this connection, the evidence, even when viewed in the light most favorable to defendant's contention and resolving all conflicts therein in defendant's favor, was in our opinion insufficient to permit submission to the jury of any issue as to whether the contract had been modified in the manner contended for by defendant. The American Monorail Company catalog, while indicating the "standard curve" of its track as having a radius of four feet, itself referred to the possibility of tracks with curves varying from those shown in the catalog. The drawing which was supplied by American Monorail Company to the plaintiff was furnished by that company solely for the purpose of giving plaintiff information as to the electrical connections to be installed on the trolley. While a very careful examination of other details of the drawing would have indicated a track curve with a four-foot radius, his drawing, supplied to plaintiff by a third-party for a totally different purpose, was wholly insufficient to evidence a request by the defendant for a change in specifications of the trolley, which specifications had been clearly and expressly agreed upon between the parties in writing. Still less was it any evidence of consent by the plaintiff to such a change. There being no other evidence to support defendant's contention that the contract had been modified by mutual consent in the manner contended for, plaintiff's motion of nonsuit of defendant's counterclaim was properly allowed.
While, in considering the question raised by plaintiff's motion to nonsuit the defendant's counterclaim, we have ignored conflicts in defendant's testimony, it is of interest to note that defendant itself apparently never considered American Monorail Company as having been authorized to act for defendant to give instructions to plaintiff as to any changes in the contract between plaintiff and defendant. Defendant admitted that on 25 April 1963, more than five months after plaintiff had manufactured and delivered the hoist and trolley to defendant, the defendant had written to American Monorail Company a letter stating: "In our original discussion we ordered eight foot radius tracks. You supplied four foot radius tracks which was an error on your part." Furthermore, on 5 August 1965, approximately three years after defendant had issued its original written purchase order to the plaintiff, the president of defendant company verified a complaint in a civil action which defendant brought against American Monorail Company in which it was alleged that the Monorail Company had agreed to supply rails "custom built with turns having a 8-foot radius * * *" In view of these statements, it is difficult to see how the defendant can now contend that it had ever requested the change in its contract with plaintiff in the manner now contended for or that plaintiff had ever assented thereto.
At the trial the parties stipulated as to the issues arising on their pleadings. At the conclusion of the evidence the trial court declined to submit these issues, but submitted only one issue as to what amount of damages, if any, plaintiff was entitled to recover from the defendant. In this there was no error. To justify submission of an issue it must not only arise on the pleadings, but must be supported by competent evidence. Gunter v. Winders, 256 N.C. 263, 123 S.E.2d 475. In the present case the price and terms of the contract *458 having been stipulated and there being no sufficient evidence that the contract had been modified as contended by defendant, the sole issue remaining was as to the amount which plaintiff was entitled to recover of defendant. Furthermore, since all of the evidence tended to establish performance of the contract by plaintiff in accordance with its terms and breach by defendant, the trial court was correct in giving the jury a peremptory instruction in plaintiff's favor. In so doing the court correctly instructed the jury that if they believed the evidence and found by its greater weight the facts to be as all the evidence tended to show, it would be their duty to answer the issue submitted in the amount of $3,550.00, with interest, but if they did not believe the evidence it would be their duty "to answer the issue in some lesser amount or nothing, depending on how you find it." Appellant contends this form of instruction was error, in that if a peremptory instruction was proper at all, the trial court could only confine the jury to two possible alternatives, either to answer the issue $3,550.00 or nothing. This contention is without merit. If the jury believed the evidence tending to show plaintiff's performance of the contract and defendant's breach thereof, the amount of plaintiff's damages was still for jury determination from the evidence. For instance, the evidence showed plaintiff had allowed defendant a $1,400.00 credit for return of the trolley, but it was still for the jury to determine if this was the proper amount.
Defendant also contends that the trial judge committed error when he asked plaintiff's attorney: "What about demand of payment on this? You'd better ask him a question on that." Defendant contends this amounted to an expression of the court's opinion in violation of G.S. § 1-180. We fail to see how it could be inferred from the question asked that the trial judge was thereby expressing any opinion to the jury and find no prejudicial error in the asking of this question. We have examined all remaining assignments of error and find the trial was free from any error prejudicial to defendant.
The judgment appealed from is
Affirmed.
MALLARD, C. J., and BROCK, J., concur.