Dodge v. Cutrer

• Decision Date: 22 April 1912
• Citation: 101 Miss. 844,58 So. 208
• Court: Mississippi Supreme Court
• Parties: D. D. DODGE v. J. W. CUTRER

58 So. 208

101 Miss. 844

D. D. DODGE v. J. W. CUTRER

Supreme Court of Mississippi

April 22, 1912

March 1912

APPEAL from the circuit court of Coahoma county, HON. SAM C. COOK Judge.

Suit by D. D. Dodge against J. W. Cutrer. From a judgment for defendant, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Suggestion of error overruled.

D. A Scott and Frank Johnston, for appellant.

Geo. Winston and Charles Clark, for appellee.

No brief of counsel for either side found in the record.

OPINION

MCLEAN, J.

The original opinion is found reported in 56 So. 455. At the earnest solicitation of counsel for appellee, we have once more traveled through this record.

Sweatman v. Parker, 49 Miss. 19, was cited for the sole purpose of showing that the party for whose benefit the contract is made has a right to bring suit in his own name. In addition, we cite Washington v. Soria, 73 Miss. 665, 19 So. 485, 55 Am. St. Rep. 555, wherein Lee v. Newman, 55 Miss. 365, is explained and to some extent overruled. The agreement executed by appellee is not a mere guaranty or indemnity, but is an absolute promise to pay "any and all debts for which H. C. Dodge and F. E. Dodge are jointly liable, or which were or are a part of the indebtedness contracted and owing by the firm of H. C. Dodge and F. E. Dodge, who lately conducted business as partners on the above-mentioned lands in Sunflower county, Miss." It would be doing violence to the terms of this contract to hold that it was a mere guaranty or indemnity to hold Mrs. Dodge harmless from the payment of this debt. The record shows appellee reserved out of the purchase price what the parties supposed was an amount sufficient to pay off and liquidate certain debts, among which is the debt sued on.

The court below ruled that parol evidence was admissible to show the consideration. The rule is well settled that ordinarily parol evidence is admissible to explain, or even contradict a written contract as to the mere consideration; but, when the consideration is contractual, parol evidence is no more admissible to vary that than it is any other part of the written instrument. This question was squarely settled by this court in Baum v. Lynn, 72 Miss. 932, 18 So. 428, 30 L. R. A. 441, Thompson v. Bryant, 75 Miss. 12, 21 So. 655, and English v. N. O. & N.E. R. R., 100 Miss. 575, 56 So. 665. In each of these cases it was there said that a consideration, recited in a written contract merely as a fact, may be varied by parol evidence; but, when the stipulation of the writing concerning the consideration is contractual, it cannot be so varied. The terms of the contract are the propositions...