Brown v. Scheuer, Wise & Co.

• Citation: 97 So. 50,210 Ala. 47
• Decision Date: 21 June 1923
• Docket Number: 4 Div. 43.
• Parties: BROWN ET AL. v. SCHEUER, WISE & CO. ET AL.
• Court: Alabama Supreme Court

97 So. 50

210 Ala. 47

BROWN ET AL. v. SCHEUER, WISE & CO. ET AL.

4 Div. 43.

Supreme Court of Alabama

June 21, 1923

Appeal from Circuit Court, Barbour County; J. S. Williams, Judge.

Bill by B. B. Brown and T. A. Brown against Scheuer, Wise & Co., and others, for cancellation of a mortgage, etc. From a decree sustaining demurrers to the bill, complainants appeal. Reversed and remanded.

Sollie & Sollie, of Ozark, for appellants.

W. H Merrill, of Eufaula, and Geo. W. Peach, of Clayton, for appellees.

SAYRE J.

It was averred in substance in appellants' bill that their sons M. L. and J. C. Brown, became indebted to Scheuer, Wise & Co. and others in the sum of $6,000; that at the same time complainants executed a mortgage on real estate to secure $2,000 of the indebtedness due from their sons to Scheuer Wise & Co., so for convenience to refer to the creditors as a whole; and that at the time it was agreed between complainants, their sons, and Scheuer, Wise & Co. that their sons would make what payments they could from time to time without waiting for the due date of their $6,000 indebtedness, and that such payments were to be first applied in discharge of the mortgage indebtedness of complainants. Complainants averred that payments by their sons had been made, sufficient, if applied according to agreement, to discharge the mortgage executed by them, of which they prayed to be relieved, or, if mistaken as to the amount of such payments, then that said mortgage be credited with the amount so paid.

Nothing of the alleged agreement as to the application of payments to be made appeared in the mortgage, and the demurrer to the bill was sustained upon the theory, evidently, that complainants should not be permitted to prove an agreement which had been merged into the mortgage contract.

Numberless cases might be cited to the general effect that, while a contract may be explained consistently with its terms, parol evidence of a term not shown by the writing is not admissible in actions ex contractu, where no fraud is charged, because its effect would be to vary the terms of the written instrument by superadding another term or condition not expressed by the parties. Bush v. Bradford, 15 Ala. 317; Tabor v. Peters, 74 Ala. 90, 49 Am. Rep. 804; Griel v. Lomax, 86 Ala. 137, 5 So. 325. In the recent case of Bissell Motor Co. v. Johnson (Ala. Sup.) 97 So. 49, we referred to the work of Prof. Williston on Contracts, vol. 2, §§ 631-638, as authority for the proposition that, when the court sees that a separate collateral agreement was probably intended by the parties, evidence of it is admitted, but that such collateral agreement must relate to a subject distinct from that to which the written contract applies. The mortgage exhibited with the bill evidenced a conveyance of realty with defeasance upon the payment of the debt therein described. The alleged agreement as to the application or appropriation of payments to be made was collateral to...