Summary
In Renfroe v. Aswell, 198 Miss. 159, 21 So.2d 812 (1945), involving a dispute over the ownership of a sawmill, the Court held that one of the partners could introduce evidence of an oral agreement rescinding a written contract for the sale of his half of the business.
Summary of this case from Sammons Communications, Inc. v. PolkOpinion
No. 35845.
April 23, 1945.
1. EVIDENCE.
In action on four notes given in payment for half interest in sawmill business, defendant's testimony as to oral agreement between parties before execution of notes and bill of sale that title to partnership property would be placed in defendant's name, and he would attempt to get a loan through a federal agency and pay partnership debts, in which case notes would be canceled, was properly excluded.
2. EVIDENCE.
In action on four notes given in payment for a half interest in sawmill business, defendant's testimony that subsequent to execution of notes and bill of sale the parties entered into a parol agreement that purported sale was to be rescinded, and pursuant thereto plaintiff was redelivered his half interest in the business and property, was improperly excluded.
3. EVIDENCE.
Evidence is generally admissible to show a subsequent parol agreement, valid under law and effective as to its subject matter, between parties to written agreement, though it may alter or abrogate such writing, and especially where such parol agreement is acted upon by the parties.
APPEAL from the circuit court of Simpson county, HON.E.L. DENT, Judge.
Edwards Edwards, of Mendenhall, for appellant.
The written instrument recites a consideration and it is claimed that it is not allowable to contradict the writing in this respect. The rule of exclusion does not apply to evidence of failure of consideration. It is not admissible to vary by parol the terms of a valid written contract or instrument. If it has a valid existence, it must stand as the sole expositor of the terms of the contract in evidence, but it is allowable to show by parol evidence that the writing never had validity, or that having had legal existence, it has for some reason ceased to be operative.
Cocke v. Blackbourn, 57 Miss. 689.
The right to show the real consideration is a qualification of the general rule of the inadmissibility of parol evidence to alter the terms of a written contract and is as well established as the rule itself.
Ohleyer v. Bernheim et al., 67 Miss. 75, 7 So. 319; Grayson v. Brooks et al., 64 Miss. 410, 1 So. 482; Ohio Pottery Glass Co. v. J.R. Pickle Son, 108 Miss. 51, 66 So. 321; Schlater Mercantile Co. v. Brinly-Hardy Co., 109 Miss. 300, 68 So. 444; Wimberly v. Wortham (Miss.), 3 So. 459; Lee v. Hawks, 68 Miss. 669, 9 So. 828; 6 R.C.L. 922, Sec. 306.
Bee King and Jas. B. Sykes, both of Mendenhall, for appellee.
To allow oral testimony to change or contradict the terms of the written contract is clearly inadmissible.
Herndon v. Henderson, 41 Miss. 584; Thompson v. Bryant, 75 Miss. 12, 21 So. 655.
When parties have deliberately put their engagements into writing, it is conclusively presumed that the whole contract was embodied therein, and testimony of a contemporaneous parol agreement is inadmissible.
Wren v. Hoffman, 41 Miss. 616; Dixon v. Cook, 47 Miss. 220; Cocke v. Blackbourn, 58 Miss. 537; Chicago Building Mfg. Co. v. Higginbotham (Miss.), 29 So. 79.
An unambiguous written contract cannot be amended by parol evidence.
Jordan v. Neal (Miss.), 33 So. 17; Columbia Star Mill Co. v. A.G. Russell Co., 89 Miss. 437, 42 So. 233; Federal Discount Co. v. Fletcher Ratliff, 104 Miss. 251, 61 So. 308.
Aswell and Renfroe were equal partners in a sawmill business. Aswell sued Renfroe in this case upon four notes, aggregating one thousand dollars, which, as claimed by Aswell, were executed by Renfroe as evidence of the purchase price by him of the half interest of Aswell, who, as a part of the transaction, executed to Renfroe a bill of sale of his interest in the business and the property used therein.
On the trial Renfroe offered to testify that the partnership was badly in debt and that it was orally agreed and understood between the parties before execution of the notes and the bill of sale that the title to the property would be placed in Renfroe and he would attempt to get a loan through a Federal Agency and pay the partnership debts, in which case the notes would be cancelled. The court, on objection, properly excluded evidence of that parol understanding. It was prior to the execution of the written notes and bill of sale and contradicted them.
However, Renfroe further offered proof to show that subsequent to the execution of the foregoing papers, and after negotiations for the Federal loan had fallen through, that the parties again got together and had a further parol understanding that the purported sale would be, and was, rescinded by mutual agreement, and that pursuant thereto Aswell was redelivered his half interest in the business and property, and that the parties jointly took charge of the property and assets and sold the same and applied the proceeds of the sale to payment of the partnership debts. The court excluded this evidence. That was error. Evidence is generally admissible to show a subsequent parol agreement, valid under the law and effective as to its subject matter, between the parties to a written instrument, although it may alter or abrogate such writing, and especially so where such parol agreement is acted upon by the parties. Lusk-Harbison-Jones, Inc., v. Universal Credit Co., 164 Miss. 693, 145 So. 623, 624; 32 C.J.S., Evidence, p. 1008, Sec. 104.
Reversed and remanded.