Long v. Perine
| Decision Date | 29 November 1895 |
| Citation | 23 S.E. 611,41 W.Va. 314 |
| Parties | LONG v. PERINE. |
| Court | West Virginia Supreme Court |
Submitted June 18, 1895
Syllabus by the Court.
1. A writing being the repository of the true final agreement of the parties to it, and the highest and safest evidence of it in the absence of fraud or mistake, oral evidence of prior or contemporaneous conversations or stipulations will not be admitted, to incorporate them in it, so as to add to, alter or contradict the agreement spoken by the writing.
2. Where there is no ambiguity in a written contract, oral evidence is not admissible to explain it, as it speaks for itself.
3. In a suit to enforce a purchase-money lien on land, no convention of the lienors of the debtor is necessary.
4. In a suit to enforce the lien for one of several notes for purchase money of land, it is not error to decree a sale for it, without provision for other notes held by the plaintiff not matured when the suit began, as this may be done in a further decree.
5. A decree of sale omits to provide for a sale on a court day. This is not error.
6. Where there is an answer calling for a special reply, and there is a general replication to it, and the party filing it has gone on and taken depositions as if there were a special reply denying it, and there has been a full hearing of the merits, as if there had been such special reply, a decree will not be reversed for want of such special reply.
7. Where there is no error but one of costs, this court will not reverse the decree.
8. When particular grounds of exception to a deposition are specified in written exceptions filed in the circuit court, other grounds cannot be made for the first time in the appellate court, except for incompetency.
9. Exceptions to depositions, except for incompetency, must specify the grounds of exception, and not be only general, and must be called to the attention of the circuit court, else they will not be considered in this court. Objection for incompetency of a witness may be made for the first time in this court.
Appeal from circuit court, Taylor county.
Bill by George T. Long against Wilson Perine to enforce a vendor's lien. From a decree for plaintiff, defendant appeals. Affirmed.
L. M. La Follette and A. L. Taylor, for appellant.
John H. Holt, for appellee.
Long brought a suit in chancery in the circuit court of Taylor county to enforce a lien for purchase money upon a tract of land sold by him to Perine, obtained a decree of sale, and Perine appeals. One of Perine's defenses is that his purchase, for one consideration, included a tract of land and also the right to take from an orchard on an adjoining tract of land, of Pixler, one-third of its fruit, until the young orchard on the land purchased by him should come to bear fruit, which right Long represented himself to have. Such was the talk in the negotiation, or, say, the agreement. The parties went to a scrivener to have the contract written, and the writing attests the sale of the land, but is silent as to this right to fruit. Part of the purchase money was paid then, and about two weeks later the deed was written by the same scrivener, the balance of the cash payment paid, and notes for deferred payments were made by the purchaser. This deed is silent as to any right to the fruit. Were it the case that the omission to transfer the right to take fruit was a mistake of the scrivener, or an unintentional or fraudulent omission, we would have a different question from that which we in fact have. But the evidence of Perine himself, and other evidence, show that, when the writing was about to be drawn, Perine mentioned this right to fruit, and wished it in serted; but the scrivener said it would make the writing cumbersome, and was not a proper thing to go into it, but ought to be the subject of another contract. It was thus agreed to omit it knowingly and intentionally. So, too, it was left out of the deed. Now, a writing is the respository and reflex of the true agreement, as finally made, in the absence of fraud or mistake, and the safest and highest evidence of that agreement; and oral evidence of prior or contemporaneous conversation, declarations, or stipulations will not be admitted to incorporate them in oringraft them upon the writing, so as to add to, alter, or contradict the agreement spoken by the writing. Lockwood v. Holliday, 16 W.Va. 651; Hukill v. Guffey, 37 W.Va. 425, 16 S.E. 544; Towner v. Lucas, 13 Grat. 705. Here are two instruments, without ambiguity, which say that, for a certain sum of money, Long sold Perine a specific tract of land. The proposition is to call in oral evidence to prove that for that sum Long did not sell only the land, but also a right to take fruit; thus altering and varying the writing, and making a different contract, contradicting the writing, as it says Long, for a fixed consideration, sold only a farm, whereas the writing, if so modified, would say that he sold him the farm, and a right to take fruit from another farm. If the writing were ambiguous, oral evidence, under certain restrictions, might be adduced to make it speak what it was the intention it should speak; but as to what was sold for a given price the writing is without ambiguity, and oral evidence cannot be called upon for purposes of construction. Hurst v. Hurst, 7 W. Va. 289, pt. 5; McGuire v. Weight, 18 W.Va. 507; Crislip v. Cain, 19 W.Va. 441, pt. 19. But, even if ambiguous, declarations of the parties before, at, or after the execution of the contract cannot be admitted, even for construction. Therefore the evidence to add the fruit right to the contract was not admissible. According to the evidence,--according to Perine himself,--this fruit license was left out of the writing, and made then, at the drafting of the writing, an independent or new contract. What may be his right under it, we do not say. But I do not regard this right to fruit as really a part of the contract of land sale. Perine, it is true, did not want to buy land with an orchard not yet fruit bearing, and was told that this need not be an objection, as Long had the privilege of getting fruit from the land of his father-in-law, Pixler, and that Perine could exercise the same privilege until his own orchard would bear fruit. It was a mere license to take fruit on another's land. Perine knew the orchard did not belong to Long. Take all the evidence of the circumstances and nature of the transaction, and we must conclude that this license was only such; not entering at all, as a substantial element, into the contract, or as a factor in the purchase money,--a mere license collateral to the land sale. Long's version, under oath, is that it was no part of the land sale. And Perine never was debarred from its exercise. It was his own fault that he did not use it. Both Long and Pixler were willing that he should. Pixler was careful to send him word to come and get fruits as Long had been doing, but Perine refused, with the sinister purpose of claiming damages from Long: He so declared, as is shown by disinterested testimony. He wished to use it as a defense, and to cut down the purchase money. He tried in vain to negotiate a loan of a loan association, telling people that he wanted it to pay this very purchase money, never setting up to them any objection on the score of this fruit matter, but, when he could not effect the loan, he concluded to use it as a defense to gain time; and all the time the door was open to him to get fruit, as he well knew, when ever the trees bore it. He insisted on a deed to show this fruit right, which was never denied. He seems to lay blame at Long's door for refusing to release his lien, to give the loan association a lien; but as the proposition was to give...
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