English v. New Orleans & North Easter R. R. Co.

• Decision Date: 29 January 1912
• Citation: 100 Miss. 809,57 So. 223
• Parties: W. H. ENGLISH v. NEW ORLEANS & NORTH EASTER R. R. CO. ET AL
• Court: Mississippi Supreme Court

57 So. 223

100 Miss. 809

W. H. ENGLISH v. NEW ORLEANS & NORTH EASTER R. R. CO. ET AL

Supreme Court of Mississippi

January 29, 1912

October 1911

APPEAL from the circuit court of Lauderdale county, HON. JOHN L BUCKLEY, Judge.

For former report of this case see ante, page 575, this book. The opinion below was rendered on suggestion of error.

Overruled.

OPINION

SMITH J.

Appellant suggests that we have erred in holding that the rule prohibits the varying of a written contract by parol is a rule of evidence, and consequently governed by the lex fori. While this rule is generally treated and referred to as a rule of evidence it may be that it is, in fact, a rule of substantive law, and consequently governed by the lex loci. Assuming, then, that the appellant is correct in stating that this cause must be determined by the law of Louisiana, the judgment of the lower court must still be affirmed; for the "parol evidence rule" in that state, in so far as the point now under consideration is concerned, is identical with the rule in Mississippi. Article 2276 of the Civil Code of Louisiana provides that "neither shall parol evidence be admitted against or beyond what is contained in the acts, nor on what may have been said before, or at the time of making them, or since;" and the ground of the decision in the case of Barfield v. Saunders, 116 La. 136, 40 So. 593, manifestly is that, "where the stipulation of a writing concerning consideration is contractual, it cannot be varied by parol." The rule in Mississippi and Louisiana, therefore, being the same, it becomes immaterial whether the contract here involved is governed by the lex fori or the lex loci; for, in either event, the result must be the same. The statement in our former opinion that "the matter now under consideration relates to a rule of evidence, and consequently the lex fori governs," was therefore, unnecessary, is hereby withdrawn, and we will express no opinion relative thereto, leaving that matter to be decided when it becomes necessary for us so to do.

We fully understand that this suit was brought upon a verbal agreement, and that appellant does not rely upon the written contract. We also understand that this verbal agreement was only a part of the whole agreement then entered into by the parties; a part of it having been reduced to writing. It is true that the rule in Louisiana is that "where a writing, although embodying an...