Edrington v. Stephens

• Decision Date: 07 November 1927
• Docket Number: 26592
• Citation: 114 So. 387,148 Miss. 583
• Court: Mississippi Supreme Court
• Parties: EDRINGTON et al. v. STEPHENS. [*]

114 So. 387

148 Miss. 583

EDRINGTON et al. v. STEPHENS. ^[*]

No. 26592

Supreme Court of Mississippi

November 7, 1927

(In Banc.) Division A.

1 EVIDENCE. Written contract as embodied in deed and notes could not be varied by parol agreement made immediately before signing written contract.

Written contract, as embodied in deed of conveyance of land on which cotton gin plant was located, and notes, could not be altered, varied, or added to by parol agreement with reference to repairs on cotton gin plant made immediately before signing written contract.

2 EVIDENCE. Written contract, embodied in deed and notes, could not be varied by parol agreement made shortly after signing contract where there was no additional consideration.

Written contract, as embodied in deed of conveyance of land on which cotton gin plant was located, and notes, could not be varied or altered by parol agreement with reference to repairs on cotton gin plant made a few minutes after signing written contract where such agreement was not supported by any additional consideration.

3 EVIDENCE. Rule that terms of written contract or conveyance cannot be varied by parol evidence is one of substantive law.

Rule that terms of written contract or conveyance cannot be varied or added to by parol evidence is not merely rule of evidence but is one of substantive law.

4. TRIAL. Notwithstanding parol evidence varying terms of written contract is admitted without objection, writing will control, where contract is unambiguous and complete.

Where evidence of oral agreement varying or adding to written contract is admitted without objection, and written contract on its face is unambiguous, and expresses an agreement complete in all its essential terms, the writing will control.

Division A

APPEAL from chancery court of Union county.

HON. ALLEN COX, Chancellor.

Suit by Simpson Tate and another against Edgar J. Stephens, in which W. B. Edrington and others, as executors, were substituted as complainants after death of the named complainant, and in which defendant filed a cross-bill. From a decree for complainants for balance found due after allowing set-off claimed by defendant, complainants appeal. Reversed and judgment rendered.

Reversed.

Dulaney & Jaquess, for appellants.

The alleged agreement with reference to the repairs, which took place before the trade was closed, was void for the reason stated; and if there was afterwards any statement about the repairs, it was a contemporaneous declaration and a mere repetition of what had already been said and was entirely without consideration.

The interlocutory decree in effect necessarily shows that the objection to testimony was overruled because the court could have allowed the credit of one thousand five hundred twenty-nine dollars and seven cents only by taking this testimony into consideration. We submit that under principles which are elementary, it is clear that the court erred in so doing.

The deed and notes constituted a written contract between the parties. The deed purported to convey a piece of property and contained no obligation to pay for repairs. The deed did contain an obligation to pay the purchase price which became binding upon delivery of the deed. The same obligation was expressed in the notes. It was not permissible to vary this written contract to pay a definite amount for the property by parol evidence of prior, contemporaneous, or subsequent oral declarations. Houck v. Wright, (Miss.), 23 So. 422; Wrenn v. Hoffman, 41 Miss. 616. It may be contended that the evidence in question merely explains the consideration. This position is not tenable. Baum v. Lynn, 72 Miss. 932; Cocke v. Blackburn, 57 Miss. 689, on second appeal, 58 Miss. 537; Thompson v. Bryant, 75 Miss. 12.

We do not perceive any valid distinction which can be made between the cases cited and the case at bar. It is well settled that a written contract may be modified by a subsequent parol agreement for an additional valid consideration. Boyd v. Kelly, 111 Miss. 629, 71 So. 897; J. B. Colt Co. v. McCullough, 141 Miss. 328, 105 So. 744. The record now before the court shows neither a subsequent agreement nor a subsequent consideration.

The right of a set-off is not shown by the pleadings or the proof. 1 Greenleaf on Evidence (16th Ed.), page 435; 4 Wigmore on Evidence, section 2400, page 3369; Morrison Co. v. Riley, 198 S.W. 1031; 10 R. C. L. section 208, page 1018; 22 C. J., page 1075; Butterick Pub. Co. v. Fisher, 203 Mass. 122, 89 N.E. 189, 133 A. S. R. 283; Edward Thompson Co. v. Foster, 101 Kans. 14, 165 P. 841; Shropshire v. Alvarado State Bank, 196 S.W. 977; Pease & Dwyer Co. v. Somers Planting Co., 130 Miss. 147, 93 So. 673; Griffith's Miss. Ch. Pr., sections 166a and 313.

The record shows that the appellants were entitled to a decree for the amount sued for less the two sums paid while the case was pending; and the final decree should be reversed and decree entered.

B. N. Knox, for appellee.

The general rule of admissibility of parol evidence does not apply as to separate or independent contracts or agreements. Baum v. Lynn, 72 Miss. 936-37; Tallahatchie Compress & Storage Co. v. Hartshorn, 88 So. 278; McCurdy v. Walblom, 102 N.W. 873, 3 Ann. Cas. 468.

In the case at bar the consideration of the oral contract was the same as the consideration of the written one because without the oral contract Stephens would not have accepted the deed and the consideration from the written contract merged into the oral contract. Virginia-Carolina Chemical Co. v. Ruffin, 88 So. 500; Green v. Rule et al., 100 So. 380; Red Snapper Sauce Co. v. Bolling, 50 So. 401; Mayor v. Casey, 57 Miss. 615; Cocke v. Blackburn, 67 Miss. 689; Ohleyer v. Bernheim Bros. et al., 67 Miss. 75; Tennin v. Garrett, 4 S. & M. 207.

The courts will receive parol evidence of such agreements when they are not inconsistent with the deed and when they will serve to explain it, especially when they are an inducement to the making of the contract. McCormick v. Cheeves, 124 Mass. 262; Carr v. Dooley, 119 Mass. 294; Green v. Batson, A. S. R. 194.

From the proof in this record it is conclusively shown that the oral agreement was the inducement moving the defendant to accept the deed. The consideration clause in a deed may be explained by parol proof. Jones on Evidence, page 589. The same authority on page 561 points out that the statute of frauds will not prevent the introduction of parol testimony as to a subsequent agreement and especially, when the proof shows the new agreement to have been executed, as was done by Stephens, or that would work a serious injury. Cline v. McNamara, 54 Miss. 90. A case in point is Werber v. Loranger, 25 A. L. R. 773, which holds that the existence of a written lease does not preclude proof of a parol agreement not incorporated in the lease relating to repairs to be made by the lessor. See, also, note on pages 850-51, Mann v. Nun, 25 A. L. R. 850; Bunn v. Wall, 104 S.E. 470.

As stated above the testimony as to the agreement was not objected to by the complainant and only the introduction of the account was objected to. Inasmuch as the complainant denied liability on this contract, it was not even necessary for the defendant to have filed an itemized account showing what constituted the amount going to make up his payment on the note and regardless of the correctness of the ruling of the lower court in admitting this account in evidence will have no effect here.

Dulaney & Jaquess, in reply, for appellants.

In Baum v. Lynn, 72 Miss. 932, relied upon by appellee, the alleged collateral and separate oral agreement was rejected by the court as was also the alleged collateral and separate oral agreement in Cocke v. Blackburn; and they were properly rejected in both cases because the alleged oral agreement were not in fact separate, collateral or independent of the definite considerations contracted for in the written instruments. So in the case at bar they must be rejected because in no sense are they separate, collateral or independent of the written contract.

"A recital in a written agreement that a stated consideration other than a promise has been given as consideration is not conclusive proof of the fact." Section 80, Contracts, Tentative Re-Statement No. 2, The American Law Institute. See also 1 Williston on Contracts, page 248.

The distinction between the cases upon which we are relying and the case of Tallahatchie Compress & Storage Co. v. Hartshorn, 88 So. 278, 125 Miss. 662, is obvious. The Hartshorn case involved not a complete contract but merely a warehouse receipt which was entirely silent as to the consideration and place of storage.

With reference to the New Hampshire, English and North Carolina cases cited for appellee, it is sufficient to say that they would have been decided differently by the Mississippi court but since the note reviewing these cases is cited by opposing counsel, we refer to 25 A. L. R. 789. The author of this note proceeds to show that in Mississippi and twenty-two other states the courts do not attempt to make "phrased exceptions" to the parol evidence rule and cites Hightower v. Henry, 85 Miss. 476, in which case the court refused to add to a written contract certain alleged verbal agreements very similar to those referred to in this record.

We take no issue with counsel for appellee in his statement that a written contract is subject to modification by subsequent oral agreement. At the same time, we call attention to the statement of Judge TERRAL in Houck v. Wright, 23 So 422, to the effect that subsequent oral declarations are rejected. There is much difference between a subsequent declaration made immediately after the signing of a contract, and a subsequent...